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ADR
ADR Final
| Question | Answer |
|---|---|
| Pros to Litigation | Can get more money Send a Message/Publicity Right to appeal Change Precedent Restore a Person's Reputation Punitive Damages Full Availability of Discovery Options |
| Cons to Litigation | Its Win or lose Lack of Privacy Can Damage Relationships Less control over Proceeding/Uncertainty People do not want to testify/evidentiary issues Emotional Evidentiary issues |
| Anatomy of a conflict | Issue, Positions, Interests, Underlying Moral Component |
| Fisher and Ury Interest-Based Bargaining | (1) Separate the people from the problem (2) Focus on interests, not positions (3) Invent options for mutual gain (4) Insist on using objective criteria |
| Types of interests | Emotional, procedural, substantive |
| How to get people off of positions | Ask open-ended questions, ignore positions and keep talking, stalemate solutions |
| What to do if you get an agreement | Get it in writing, make sure it is valid and enforceable |
| Distributive bargaining | Win/lose, money-focused, conceal information, hardball tactics. |
| Integrated Bargaining | Focus on underlying needs, brainstorm creative solutions, mutual gain. |
| Pros to Mediation | Less formal Faster More affordable More satisfying solutions More confidential |
| Cons to Mediation | Want Precedent Want Publicity Criminal and other matters (e.g. patents) are not well suited Not enough facts are known Need eyes on the situation |
| Aspects of Mediation | Voluntary, confidential, self-determination, future oriented, flexible, not necessarily adversarial, neutral decision maker |
| Mediator Role | Neutral third party: Organizer, communication director, intervenor and guide, encourager of settlement, listener, no legal advice |
| Caucus | Private meeting between the mediator and one of the parties |
| Pros of Arbitration | Can ask for what you need Rules of evidence are more lax No arbitration agreement in writing, no arbitration Cheaper and quicker More Private Finality and Certainty Autonomy Can agree on anything you want |
| Cons of Arbitration | Still have to prove your case if the other side does not show up Cannot appeal No jury No publicity No precedential value Limited discovery Stuck in arbitration unless there is fraud or unconscionability |
| Hallmarks of Arbitration | Creature of contract, quasi-judicial, and substantive and procedural aspects (FAA) |
| What can the Arbitrator base their decision on? | Arbitration agreement, fairness, the law, the facts, their own knowledge and experience, weight of the evidence |
| FAA § 2 | Arbitration agreements at valid, enforceable, and irrevocable unless some state law contract defense is available |
| FAA § 3 | Can compel a party to arbitrate |
| FAA § 4 | Can compel a party to show up to arbitration |
| FAA § 7 | Vest the arbitrator with quasi-judicial authority; arbitrator may compel attendance |
| FAA § 9 | Arbitrators create an award; Court must confirm it unless it is vacated or modified; you have one year to confirm an award |
| FAA § 10 | Reasons to vacate an award: (1) corruption, fraud, or undue means, (2) Arbitrator had evident partiality, (3) Arbitrator guilty of misconduct, and (4) arbitrator exceeded their powers |
| FAA § 12 | Losing side has 3 months to vacate an award |
| AT&T Holding | FAA preempts state law, state laws are invalid if they frustrate the purposes of the FAA |
| Prima Paint Holding | If whole agreement is being challenged? Arbitrator decides If arbitration clause is being challenged? The court decides |
| Dean Witter Holding | Questions of arbitrability are for the court to decide Procedural questions are for the arbitrator to decide |
| First Options Holding | Need clear and unmistakable evidence for an arbitrator to rule on arbitrability |
| Buckeye Holding | Contract defenses are decided by the arbitrator including the illegality defense |
| Rent-A-Car Holding | Arbitrator gets to decide if agreement is enforceable |
| American Italian Pasta and CHI Holding | Businesses held to a higher standard when enforcing arbitration agreements |
| Revere Copper Holding | Arbitrator has a tremendous amount of power |
| Hall St. Holding | Cannot stipulate for expanded review for a court to determine if there are errors of law in the arbitration award |
| Gilmer Holding | Court can arbitrate ADEA claims |
| Commonwealth Holding | When the arbitrator has substantial interest in a firm which has done more than trivial business with a party, that fact must be disclosed |
Created by:
user-2009183