BUS 115 Chap004 alternative dispute resolution

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BUS 115 Chap004 alternative dispute resolution

  1. 1. Chapter 4 Alternative Dispute Resolution 4-1
  2. 2. Alternative Dispute Resolution • Attempts to resolve disagreements by stepping outside the traditional litigation process. 4-4
  3. 3. Problems with Litigation • Justice often goes to those who can afford it – The best attorneys usually cost the most • Expensive – Obtaining records, hiring experts, etc. • Time consuming – Process involves several steps with potential for several long delays • Some jurisdictions require litigants to submit to hearings before securing a trial date 4-5
  4. 4. The ADR Option • Goal: to be more economical and efficient than litigation – Less expensive – Less time-consuming • Proactive ADR anticipates and deals with disputes before they occur • Even if dispute not resolved, useful for narrowing issues and evaluating strength of the cases 4-6
  5. 5. Shortcomings of ADR • Justice outside the system might hamper the development of the law – Many critical social issues may never reach the judicial system • Limited scope – Constitutional law, civil rights, criminal law should not be considered for ADR • Not always more efficient than traditional system. 4-7
  6. 6. ADR Techniques Mediation Arbitration Med-arb Early neutral evaluation Summary jury trials Private civil trials 4-9
  7. 7. ADR Techniques • Mediation – Parties to a dispute invite a third party (mediator) to help find a solution to their problem (non-binding) • Goal of the mediator: convince parties to adjust or settle their dispute – suggests solutions that please both sides – cannot decide what parties will do 4-10
  8. 8. ADR Techniques • Arbitration – An arbitrator serves like a judge to settle disputes – Process runs like a trial but with more relaxed procedure • Mandatory arbitration – Some states require arbitration before trial – Many contracts try to force arbitration to settle disputes Court-ordered arbitration in NC 4-11
  9. 9. Shortcomings of Arbitration 1. Hearing is run like a trial but without the safeguards that come with the rules of civil procedure, discovery, and motion practice 2. Wide discretion granted to arbitrators can sometimes lead to unreasonable decisions and unjustifiable awards 4-12
  10. 10. ADR Techniques • Med-arb – Combines mediation with arbitration • If after mediation, a dispute is still unsettled, parties can move to an arbitration hearing 4-13
  11. 11. ADR Techniques • Early neutral evaluation – Parties permit a referee to assess their case based on the facts and legal arguments alone • The evaluator examines the facts and the law and renders an assessment of legal rights and amount of reward that should be rendered. In Mecklenburg County 4-14
  12. 12. ADR Techniques • Summary jury trial – shortened version of a trial – conducted in less than a day – conducted before an actual jury which then renders an advisory verdict • Offers litigants a chance to see how a jury would react • Attorneys can interview jurors after to see why they reacted that way • Conference held after to discuss settlement options In Mecklenburg County 4-15
  13. 13. ADR Techniques • Private civil trial – parties hire a retired judge or magistrate to hear their dispute following the same rules used in an official trial • Advantages – parties can hold trial at a time and place of their choosing – parties can choose their own judge In Ohio 4-16
  14. 14. Proactive ADR • • • • • Partnering ADR contract clauses Settlement week Negotiated rule making Science court proposal 4-17
  15. 15. Proactive ADR • Partnering – establishes supportive relationships among the parties to a contract to head off disputes before they occur • Try to anticipate problems and create solutions • Best used when a contract involves complex interrelationships among a wide variety of different parties 4-18
  16. 16. Proactive ADR • ADR contract clause – specifies that parties have promised to use an ADR technique if a dispute arises • Advantages – helpful when two or more parties have an extended affiliation that may involve numerous contracts – beneficial to those parties with the weakest position in a contractual relationship 4-19
  17. 17. Proactive ADR • Settlement week – Five-day period during which a court’s docket is cleared of all business, except for settlement hearings – Cases are matched with mediators and a schedule is established 4-20
  18. 18. Proactive ADR • Negotiated rule making (reg-neg) – an agency invites the people and the organizations to be affected by a new rule to have input into the writing of that rule 4-21
  19. 19. Negotiated Rule Making • Convenor – objective outsider who is trained in facilitating the early stages of the negotiated rule making process • Convening – preliminary steps in the negotiated rule making process 4-22
  20. 20. Proactive ADR • Post-appellate procedures – involve taking a case that has been rejected or dismissed by a domestic court to an international organization • International arbitration agreement – involves a pledge to use arbitration should the parties find themselves in disagreement as to the enforcement rights under the original contract 4-23
  21. 21. Proactive ADR • Science court – acts as a forum for disputes involving scientific and technological controversies • Judges on the science court are scientists educated in the areas under investigation, allowing them to use their expertise 4-24
  22. 22. Question? What occurs whenever individuals attempt to resolve disagreements by stepping outside the usual adversarial system? A. Alternative dispute resolution B. Substitute resolution C. Dispute optional resolution D. Alternative resolution 4-25
  23. 23. Question? What is the process by which the parties to a dispute invite a third party, known as a mediator, to help find a solution to their problem? A. Arbitration B. Mediation C. Negotiation D. Adjudication 4-26
  24. 24. Question? What is an objective outsider who is trained in facilitating the early stages of the negotiated rule making process? A. Mediator B. Arbitrator C. Convenor D. Adjudicator 4-27
  25. 25. Question? What is the process by which the parties permit a referee to assess their case based on the facts and legal arguments alone? A. Early neutral evaluation B. Summary jury trial C. Civil judgment D. Neutral judgment 4-28
  26. 26. Question? What is the five day period during which a court’s docket is cleared of all business, except for settlement hearings? A. Mediation week B. Settlement court C. Settlement week D. Arbitration week 4-29
  27. 27. Question? Which court acts as a forum for disputes involving scientific and technological controversies? A. Technology court B. Science court C. Science resolution body D. Technology appellate board 4-30

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