This document provides an overview of alternative dispute resolution and litigation for business executives. It discusses three key points:
1. Uncertainty from disputes can damage a company in many ways such as making lenders less likely to lend. It is difficult for executives to separate disputes from their personal and professional roles.
2. Most civil lawsuits settle before or during trial to avoid high costs and uncertainty. Effective pre-trial discovery is important for determining settlement parameters.
3. Studies show that plaintiffs who reject settlement offers usually fare worse financially at trial, while defendants who reject offers risk much larger losses if they receive an unfavorable verdict. Trials are high-risk gambles for both sides.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Rejecting a settlement offer carries risks, as plaintiffs who turn down offers often receive less at trial. Plaintiffs were more likely to make poor choices about rejecting offers in contingency fee cases.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions. Developing rapport and trust between parties can help reach a mutually agreeable solution.
April 2011 Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Plaintiffs who reject settlement offers often fare worse at trial, receiving smaller awards than the rejected offers. Defendants who reject settlement offers also often lose more by going to trial when they could have settled for less.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions to find mutually agreeable solutions. Building rapport and trust between parties can help resolve current and future conflicts.
Successful strategies for resolving disputes involve having a clear position based on facts and law, understanding the objectives sought, and choosing tactics that further the overall strategy. Litigation is a process with many steps where choices affect the outcome, so parties should be aware of options and only pursue interlocutory applications or discovery if they help achieve the goals. Most disputes settle in the end, so alternative dispute resolution should be seen as integral to the strategy rather than a separate process. Preparation is key to positioning the dispute optimally for settlement or a successful trial.
In-house counsel and claims professionals evaluate thousands of cases each year and make decisions concerning which cases to potentially take to trial, which to settle soon after a lawsuit is filed, and which to settle before a lawsuit is even filed. In most cases, counsel and claims professionals prefer to mediate in order to avoid the expensive costs of litigation. This article explores the tactics and tools for a successful mediation.
This document discusses strategies for successful mediation of insured claims. It notes that mediating insured claims requires a different approach than other types of disputes due to different participant dynamics. Key strategies discussed include:
1) Ensuring adequate information exchange between parties so that valuations are justified and informed. Withholding information risks evidentiary issues and bad faith claims.
2) Conducting objective case valuation and risk analysis using techniques like decision trees to assess likelihood of various outcomes and compare to similar past cases. Misvaluation of claims often leads to rejected settlement offers parties later regret.
3) Encouraging frank discussion of case strengths and weaknesses rather than relying solely on positional bargaining, as insured claims mediation often devolves
Topological Diagram of dispute resolution RhysClift
This PPT sets out a diagram of various forms of dispute resolution (in which this firm has particular expertise) and how they inter-relate, notably litigation, arbitration and ADR, with short, clear explanatory text,. It touches on the impact of the COVID-19 pandemic. Huge change has taken place within a few short weeks. Dispute resolution, offering efficient problem solving, remains very much open for business in England and Wales, facilitated by the systems and procedures already in place (courts, the CPR; arbitration panels and rules), coupled with on line systems. This is an example of the impact of disaster and innovation as a catalyst for quite remarkable, positive change.
Negotiating American Master Supply Contracts: A Guide for European Exporters Eliot Norman
What are the 10 traps for European companies selling to U.S. OEM and other buyers using American Supply Contracts? indemnification, liquidated damages, consequential damages, force majeure, termination for convenience, ownership of intellectual property
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Rejecting a settlement offer carries risks, as plaintiffs who turn down offers often receive less at trial. Plaintiffs were more likely to make poor choices about rejecting offers in contingency fee cases.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions. Developing rapport and trust between parties can help reach a mutually agreeable solution.
April 2011 Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Plaintiffs who reject settlement offers often fare worse at trial, receiving smaller awards than the rejected offers. Defendants who reject settlement offers also often lose more by going to trial when they could have settled for less.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions to find mutually agreeable solutions. Building rapport and trust between parties can help resolve current and future conflicts.
Successful strategies for resolving disputes involve having a clear position based on facts and law, understanding the objectives sought, and choosing tactics that further the overall strategy. Litigation is a process with many steps where choices affect the outcome, so parties should be aware of options and only pursue interlocutory applications or discovery if they help achieve the goals. Most disputes settle in the end, so alternative dispute resolution should be seen as integral to the strategy rather than a separate process. Preparation is key to positioning the dispute optimally for settlement or a successful trial.
In-house counsel and claims professionals evaluate thousands of cases each year and make decisions concerning which cases to potentially take to trial, which to settle soon after a lawsuit is filed, and which to settle before a lawsuit is even filed. In most cases, counsel and claims professionals prefer to mediate in order to avoid the expensive costs of litigation. This article explores the tactics and tools for a successful mediation.
This document discusses strategies for successful mediation of insured claims. It notes that mediating insured claims requires a different approach than other types of disputes due to different participant dynamics. Key strategies discussed include:
1) Ensuring adequate information exchange between parties so that valuations are justified and informed. Withholding information risks evidentiary issues and bad faith claims.
2) Conducting objective case valuation and risk analysis using techniques like decision trees to assess likelihood of various outcomes and compare to similar past cases. Misvaluation of claims often leads to rejected settlement offers parties later regret.
3) Encouraging frank discussion of case strengths and weaknesses rather than relying solely on positional bargaining, as insured claims mediation often devolves
Topological Diagram of dispute resolution RhysClift
This PPT sets out a diagram of various forms of dispute resolution (in which this firm has particular expertise) and how they inter-relate, notably litigation, arbitration and ADR, with short, clear explanatory text,. It touches on the impact of the COVID-19 pandemic. Huge change has taken place within a few short weeks. Dispute resolution, offering efficient problem solving, remains very much open for business in England and Wales, facilitated by the systems and procedures already in place (courts, the CPR; arbitration panels and rules), coupled with on line systems. This is an example of the impact of disaster and innovation as a catalyst for quite remarkable, positive change.
Negotiating American Master Supply Contracts: A Guide for European Exporters Eliot Norman
What are the 10 traps for European companies selling to U.S. OEM and other buyers using American Supply Contracts? indemnification, liquidated damages, consequential damages, force majeure, termination for convenience, ownership of intellectual property
Successful Strategies For Resolving Disputes (Jenny Cooper and Brendan Cash, ...nzde
1) Litigation can be a long and costly process with many variables outside the parties' control, so it's important to carefully consider objectives and strategy from the beginning.
2) Key questions include analyzing the facts and legal position, determining desired outcomes, and considering alternative dispute resolution options.
3) Ongoing strategic choices around procedures, settlement discussions, and preparation can impact the results, so parties should actively manage their approach throughout the process.
The document discusses several barriers to international cooperation according to different international relations scholars and schools of thought. Key barriers include the anarchic nature of the international system, states' desire to maximize relative and absolute gains, the ability of superpowers to veto agreements, and states' tendency to pursue competitive strategies rather than collaborative ones. Realists argue that states are concerned with relative gains and fear that cooperation could benefit other states more in the future. Neoliberals add that lack of information and high costs and risks also undermine cooperation. Different scholars may see some barriers as more important than others.
Utilizing Alternative Dispute Resolution Tactics in Employment MattersWoodrow Glass
The document discusses alternative dispute resolution (ADR) tactics for resolving employment disputes. It outlines various ADR options like mediation, arbitration, and conciliation that provide alternatives to litigation. These options allow parties more control over outcomes but with varying levels of formality and costs. The document also discusses internal company dispute resolution policies versus external ADR governed by rules. It provides details on the mediation, conciliation and arbitration processes and emphasizes the importance of carefully drafting settlement agreements that result from ADR to accurately reflect the resolution and prevent future disputes.
This document discusses differences between Eastern and Western negotiation styles. It notes that Eastern styles tend to prioritize group goals and hierarchical decision-making, while Western styles emphasize individualism and non-structured processes. Additionally, Eastern negotiators take a long-term orientation, willing to renegotiate to achieve long-term objectives, whereas Westerners focus on short-term goals and adhere strictly to contracts. The document also outlines some key communication differences and tools that Western negotiators commonly use, such as requests for information/proposals and shareholder agreements.
This document discusses traditional approaches to solving conflicts that have shortcomings. It describes traditional approaches as "an eye for an eye" which ends up making everyone blind, or "quid pro quo" deals where one party wins and the other loses. These approaches often result in solutions that leave neither party fully satisfied or prolong the conflict indefinitely. Additionally, peace deals under traditional approaches mainly serve elite interests rather than local needs. In conclusion, the document argues that traditional conflict resolution processes only produce temporary solutions and fail to fully resolve the underlying issues, as seen in examples like Bosnia and Kosovo.
This document provides an overview of negotiation and mediation. It defines negotiation as a process where parties with opposing preferences discuss issues to try and reach agreement, while mediation involves one or more third parties assisting in the discussion.
Key points made include:
- Negotiation and mediation are two of the main procedures for dealing with opposing preferences, along with struggle and arbitration.
- Mediation consists of negotiation assisted by a neutral third party, with the goal of helping disputing parties voluntarily reach their own settlement.
- Effective mediators employ strategies like facilitating communication between parties, controlling aspects of the negotiation process, and using incentives to shape outcomes.
The document discusses creativity and problem solving in negotiations. It describes different mental models negotiators can take, such as seeing negotiations as problem solving or partnership. Creative negotiations aim to expand options and find win-win agreements. Contingency contracts can help manage risks if they are clearly defined and parties can enforce them. However, cognitive biases like anchoring can limit creativity. The document provides strategies and techniques for overcoming these barriers to creative thinking and problem solving in negotiations.
Ware aba dr_adhesive arbitration class actions cfpb_2018 april 3Stephen Ware
The document discusses the nullification of the CFPB's rule prohibiting class action waivers in arbitration agreements for consumer financial products. It notes that:
1) Current law generally enforces class waivers in arbitration agreements. However, some courts previously declined to enforce them.
2) In 2016, the CFPB proposed a rule prohibiting class waivers but Congress passed a resolution in 2017 nullifying this rule.
3) There are partisan divides over arbitration issues in Congress, the executive branch, and the Supreme Court along Democratic/Republican lines. The debate involves differing views on the level of consumer consent required for arbitration agreements.
Mitigating Litigation Risk at the Deal Table M&A Part II Polsinelli PC
Attorneys from Polsinelli's Corporate & Transactional, Financial & Fiduciary Litigation, and Government Investigations practices share the following topics regarding M&A:
*Compartmentalizing Liability: Reducing Risk of Veil-Piercing by Courts and Similar Outcomes
*Alternative Dispute Resolution: Mediation and Arbitration
*Choice of Law Provisions in M&A Agreements
*Venue Selection in M&A Agreements
Exponential expansion in the use of Requests for Proposals (RFPs) has placed a powerful tool in the hands of general counsel — one that they use with uneven skill. Here are the pitfalls to avoid and the keys to making RFPs clear, fair and effective.
2014 CreditScape, Western Region Credit Conference Seminar Slide Deck, sponsored by Credit Management Association. More information: www.creditmanagementassociation.org
Valuing Real Estate Assets (Series: Fairness Issues in Real Estate-Based Bank...Financial Poise
As the expression goes, the value of real estate is in the eye of the beholder. Ultimately, the value is whatever the market is willing to pay. While income producing properties, particularly with creditworthy tenants, may be fairly routine to value based on the current rate of return demands in the market, non-income producing properties may be more speculative.
For example, even the most seasoned appraiser may struggle with finding comparative sales for a property. A landowner might see their property value go up exponentially “if only” the city council will allow for a zoning variance. Many an owner believes that their property is in the “path of progress,” but when? Is it reasonable to value a property “as stabilized” if it is only forty percent leased? These are the types of questions we will consider.
To view the accompanying webinar, go to: financialpoise.com/financial-poise-webinars/valuing-real-estate-assets-2021/
Oiv presentation jeff k davis (mercer capital) 15-11-30Jeff Davis
This document discusses dual fairness opinions and the role of valuation firms in mergers and acquisitions. It notes that while fairness opinions are not legally required, they have become standard practice following benchmark cases that established directors' duty of care. A second fairness opinion from an independent valuation firm can help reduce conflicts of interest, vet the transaction process, and provide another perspective for the board. However, a second opinion is not a legal pass and will not remedy flaws in the deal. The roles of investment banks and valuation firms in the fairness opinion process are compared, with valuation firms seen as having fewer conflicts of interest due to their independence and fixed fee structure.
Current Issues in Securities RegulationNow Dentons
Mark Evans, a partner in the FMC Toronto office, was invited to speak at the Second Annual Securities Symposium this month about current issues in the area of Securities Regulation.
This document discusses commercial dispute resolution and the skills needed for a broadly skilled dispute resolution practitioner. It begins by contrasting commercial disputes with other types of disputes like personal or family matters. Key aspects of commercial disputes are legal entitlements, continuing business relationships, and cost significance. The document then outlines a continuum of dispute resolution processes from self-negotiation to litigation. It discusses how a practitioner should have skills from different processes like listening and persuasion from mediation or procedural efficiency from arbitration. The ultimate dispute resolution toolkit requires understanding various procedures, personality influences, and applying rules of evidence fairly while maintaining impartiality.
This document discusses the challenges financial advisors face when dealing with clients who are cognitively impaired or have dementia. It notes that as the population ages, advisors will encounter more clients with memory issues. Advisors must navigate privacy issues and determine when a client's judgment may be compromised. They risk legal liability whether they follow a client's instructions or deny requests. The article examines case studies and recommends advisors hint at cognitive issues to family without disclosing private details, and get doctors' assessments when making transactions for impaired clients. Experts say advisors are not qualified to diagnose issues and need better guidance on assessing capacity and protecting clients from potential financial abuse or exploitation.
The document provides guidance on preparing clients for mediation. It emphasizes that clients must understand the purpose and process of mediation, as well as the mediator's role. Specifically, clients should know that mediation aims to facilitate voluntary agreements through open communication and problem-solving. The mediator manages the process but does not impose solutions. Effective preparation of clients helps ensure they are informed and able to meaningfully participate in mediation.
This document discusses methods for managing conflicts, including litigation, mediation, and negotiation. It notes that the US has around 1 lawyer per 200 people while Japan has around 1 lawyer per 9,000 people. Abraham Lincoln is quoted as advising people to "discourage litigation" and "never stir up litigation." The document then discusses the court's approach to managing conflicts and costs, defines mediation and its benefits, and outlines the stages of the mediation process from preparation to reaching an agreement. Negotiation techniques like positional bargaining and principled negotiation are also mentioned.
Part I What Every Executive Should Know About Dispute ResolutionRBCG1
This document provides an overview of alternative dispute resolution (ADR) options for resolving business disputes, focusing on mediation and arbitration. It discusses the four main ADR processes - mediation, arbitration, negotiation, and litigation - and explains that mediation and arbitration are private processes where the parties craft their own solution or an arbitrator makes a binding decision, respectively. The document also outlines the typical steps involved in mediation and arbitration and highlights advantages like cost and time savings compared to litigation.
Successful Strategies For Resolving Disputes (Jenny Cooper and Brendan Cash, ...nzde
1) Litigation can be a long and costly process with many variables outside the parties' control, so it's important to carefully consider objectives and strategy from the beginning.
2) Key questions include analyzing the facts and legal position, determining desired outcomes, and considering alternative dispute resolution options.
3) Ongoing strategic choices around procedures, settlement discussions, and preparation can impact the results, so parties should actively manage their approach throughout the process.
The document discusses several barriers to international cooperation according to different international relations scholars and schools of thought. Key barriers include the anarchic nature of the international system, states' desire to maximize relative and absolute gains, the ability of superpowers to veto agreements, and states' tendency to pursue competitive strategies rather than collaborative ones. Realists argue that states are concerned with relative gains and fear that cooperation could benefit other states more in the future. Neoliberals add that lack of information and high costs and risks also undermine cooperation. Different scholars may see some barriers as more important than others.
Utilizing Alternative Dispute Resolution Tactics in Employment MattersWoodrow Glass
The document discusses alternative dispute resolution (ADR) tactics for resolving employment disputes. It outlines various ADR options like mediation, arbitration, and conciliation that provide alternatives to litigation. These options allow parties more control over outcomes but with varying levels of formality and costs. The document also discusses internal company dispute resolution policies versus external ADR governed by rules. It provides details on the mediation, conciliation and arbitration processes and emphasizes the importance of carefully drafting settlement agreements that result from ADR to accurately reflect the resolution and prevent future disputes.
This document discusses differences between Eastern and Western negotiation styles. It notes that Eastern styles tend to prioritize group goals and hierarchical decision-making, while Western styles emphasize individualism and non-structured processes. Additionally, Eastern negotiators take a long-term orientation, willing to renegotiate to achieve long-term objectives, whereas Westerners focus on short-term goals and adhere strictly to contracts. The document also outlines some key communication differences and tools that Western negotiators commonly use, such as requests for information/proposals and shareholder agreements.
This document discusses traditional approaches to solving conflicts that have shortcomings. It describes traditional approaches as "an eye for an eye" which ends up making everyone blind, or "quid pro quo" deals where one party wins and the other loses. These approaches often result in solutions that leave neither party fully satisfied or prolong the conflict indefinitely. Additionally, peace deals under traditional approaches mainly serve elite interests rather than local needs. In conclusion, the document argues that traditional conflict resolution processes only produce temporary solutions and fail to fully resolve the underlying issues, as seen in examples like Bosnia and Kosovo.
This document provides an overview of negotiation and mediation. It defines negotiation as a process where parties with opposing preferences discuss issues to try and reach agreement, while mediation involves one or more third parties assisting in the discussion.
Key points made include:
- Negotiation and mediation are two of the main procedures for dealing with opposing preferences, along with struggle and arbitration.
- Mediation consists of negotiation assisted by a neutral third party, with the goal of helping disputing parties voluntarily reach their own settlement.
- Effective mediators employ strategies like facilitating communication between parties, controlling aspects of the negotiation process, and using incentives to shape outcomes.
The document discusses creativity and problem solving in negotiations. It describes different mental models negotiators can take, such as seeing negotiations as problem solving or partnership. Creative negotiations aim to expand options and find win-win agreements. Contingency contracts can help manage risks if they are clearly defined and parties can enforce them. However, cognitive biases like anchoring can limit creativity. The document provides strategies and techniques for overcoming these barriers to creative thinking and problem solving in negotiations.
Ware aba dr_adhesive arbitration class actions cfpb_2018 april 3Stephen Ware
The document discusses the nullification of the CFPB's rule prohibiting class action waivers in arbitration agreements for consumer financial products. It notes that:
1) Current law generally enforces class waivers in arbitration agreements. However, some courts previously declined to enforce them.
2) In 2016, the CFPB proposed a rule prohibiting class waivers but Congress passed a resolution in 2017 nullifying this rule.
3) There are partisan divides over arbitration issues in Congress, the executive branch, and the Supreme Court along Democratic/Republican lines. The debate involves differing views on the level of consumer consent required for arbitration agreements.
Mitigating Litigation Risk at the Deal Table M&A Part II Polsinelli PC
Attorneys from Polsinelli's Corporate & Transactional, Financial & Fiduciary Litigation, and Government Investigations practices share the following topics regarding M&A:
*Compartmentalizing Liability: Reducing Risk of Veil-Piercing by Courts and Similar Outcomes
*Alternative Dispute Resolution: Mediation and Arbitration
*Choice of Law Provisions in M&A Agreements
*Venue Selection in M&A Agreements
Exponential expansion in the use of Requests for Proposals (RFPs) has placed a powerful tool in the hands of general counsel — one that they use with uneven skill. Here are the pitfalls to avoid and the keys to making RFPs clear, fair and effective.
2014 CreditScape, Western Region Credit Conference Seminar Slide Deck, sponsored by Credit Management Association. More information: www.creditmanagementassociation.org
Valuing Real Estate Assets (Series: Fairness Issues in Real Estate-Based Bank...Financial Poise
As the expression goes, the value of real estate is in the eye of the beholder. Ultimately, the value is whatever the market is willing to pay. While income producing properties, particularly with creditworthy tenants, may be fairly routine to value based on the current rate of return demands in the market, non-income producing properties may be more speculative.
For example, even the most seasoned appraiser may struggle with finding comparative sales for a property. A landowner might see their property value go up exponentially “if only” the city council will allow for a zoning variance. Many an owner believes that their property is in the “path of progress,” but when? Is it reasonable to value a property “as stabilized” if it is only forty percent leased? These are the types of questions we will consider.
To view the accompanying webinar, go to: financialpoise.com/financial-poise-webinars/valuing-real-estate-assets-2021/
Oiv presentation jeff k davis (mercer capital) 15-11-30Jeff Davis
This document discusses dual fairness opinions and the role of valuation firms in mergers and acquisitions. It notes that while fairness opinions are not legally required, they have become standard practice following benchmark cases that established directors' duty of care. A second fairness opinion from an independent valuation firm can help reduce conflicts of interest, vet the transaction process, and provide another perspective for the board. However, a second opinion is not a legal pass and will not remedy flaws in the deal. The roles of investment banks and valuation firms in the fairness opinion process are compared, with valuation firms seen as having fewer conflicts of interest due to their independence and fixed fee structure.
Current Issues in Securities RegulationNow Dentons
Mark Evans, a partner in the FMC Toronto office, was invited to speak at the Second Annual Securities Symposium this month about current issues in the area of Securities Regulation.
This document discusses commercial dispute resolution and the skills needed for a broadly skilled dispute resolution practitioner. It begins by contrasting commercial disputes with other types of disputes like personal or family matters. Key aspects of commercial disputes are legal entitlements, continuing business relationships, and cost significance. The document then outlines a continuum of dispute resolution processes from self-negotiation to litigation. It discusses how a practitioner should have skills from different processes like listening and persuasion from mediation or procedural efficiency from arbitration. The ultimate dispute resolution toolkit requires understanding various procedures, personality influences, and applying rules of evidence fairly while maintaining impartiality.
This document discusses the challenges financial advisors face when dealing with clients who are cognitively impaired or have dementia. It notes that as the population ages, advisors will encounter more clients with memory issues. Advisors must navigate privacy issues and determine when a client's judgment may be compromised. They risk legal liability whether they follow a client's instructions or deny requests. The article examines case studies and recommends advisors hint at cognitive issues to family without disclosing private details, and get doctors' assessments when making transactions for impaired clients. Experts say advisors are not qualified to diagnose issues and need better guidance on assessing capacity and protecting clients from potential financial abuse or exploitation.
The document provides guidance on preparing clients for mediation. It emphasizes that clients must understand the purpose and process of mediation, as well as the mediator's role. Specifically, clients should know that mediation aims to facilitate voluntary agreements through open communication and problem-solving. The mediator manages the process but does not impose solutions. Effective preparation of clients helps ensure they are informed and able to meaningfully participate in mediation.
This document discusses methods for managing conflicts, including litigation, mediation, and negotiation. It notes that the US has around 1 lawyer per 200 people while Japan has around 1 lawyer per 9,000 people. Abraham Lincoln is quoted as advising people to "discourage litigation" and "never stir up litigation." The document then discusses the court's approach to managing conflicts and costs, defines mediation and its benefits, and outlines the stages of the mediation process from preparation to reaching an agreement. Negotiation techniques like positional bargaining and principled negotiation are also mentioned.
Part I What Every Executive Should Know About Dispute ResolutionRBCG1
This document provides an overview of alternative dispute resolution (ADR) options for resolving business disputes, focusing on mediation and arbitration. It discusses the four main ADR processes - mediation, arbitration, negotiation, and litigation - and explains that mediation and arbitration are private processes where the parties craft their own solution or an arbitrator makes a binding decision, respectively. The document also outlines the typical steps involved in mediation and arbitration and highlights advantages like cost and time savings compared to litigation.
Part I What Every Executive Should Know About Dispute ResolutionRBCG1
This document discusses alternative dispute resolution options for resolving business disputes, focusing on mediation and arbitration. It provides information on four dispute resolution processes - mediation, arbitration, negotiation, and litigation. Mediation involves a neutral third party helping parties reach a mutually agreeable settlement. Arbitration involves a binding decision by an arbitrator. Negotiation involves direct discussions between parties. Litigation involves a public, adversarial process where a judge decides a winner. The document emphasizes that mediation and arbitration are better than litigation when future relationships are important.
Module 2 ReadingsEarly in the week, complete the following· R.docxannandleola
Module 2 Readings
Early in the week, complete the following:
· Read the overview for Module 2
· From the textbook, International business law and its environment, read the following chapters:
· Resolving International Commercial Disputes
· From the Internet, read:
· Bergsten, C. F., & Subramanian, A. (2008, October 8). Globalizing the crisis response. Washington Post. Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2008/10/07/AR2008100702440.html
· Kramer, L. (1996, January 29). McDonald’s accelerates international expansion. Nation's Restaurant News. Retrieved from EBSCOhost Business Source Elite
· Goudy, G. (2007). International expansion-risk sharing considerations. Business Credit, 109(1), 53-55. Retrieved from http://search.proquest.com.libproxy.edmc.edu/docview/230146054
· Pratap, R. (2008, April 23). AT&T in talks to re-enter Indian cellular market. Business Week. Retrieved fromhttp://www.businessweek.com/globalbiz/content/apr2008/ gb20080423_219907.htm
· World Trade Organization (WTO). (n.d.). World tariff profiles 2008. Retrieved fromhttp://www.wto.org/english/res_e/booksp_e/tariff_profiles08_e.pdf
CHAPTER 3: Resolving International Commercial Disputes
AVOIDING BUSINESS DISPUTES
Long-term business relationships are generally the most profitable ones. Experienced executives and international managers know this, and they work very hard to foster them, at both the personal and organizational levels. Long-term relationships are based on trust. In a world where we do business with people who look, speak, and act differently from ourselves and who live and work oceans away, trust takes on a new and even more important significance. Indeed, it has been said that all of international business is based on trust. Any dispute that threatens the bonds of trust can threaten future business opportunities, do irreparable harm to individual and corporate reputations, and permanently damage long-term relationships. Moreover, when disputes become combative, it can be costly, time consuming, and physically and mentally exhausting for all parties. After all, there is the real possibility that one or both of the parties will have to litigate in a protracted and expensive trial in a foreign court, before a foreign judge, and in a foreign language, and have their rights determined under foreign procedural rules and possibly foreign law. Quite often the parties must retain attorneys in more than one country. So, when disagreements break out, amicable settlements are usually the best outcome and offer the best hope of salvaging a business relationship. It is always helpful if the parties have a reservoir of trust and goodwill that they can draw on to settle the dispute in a friendly way. But, of course, this is not always possible, and the prudent international businessperson, in any contract or any venture, will seek good legal advice and always “hope for the best and plan for the worst.”
Nowhere is this more important than in negotia ...
The document discusses the essentials of arbitration agreements. It states that arbitration agreements require parties to resolve disputes through a neutral third-party arbitrator instead of going to court. Contracts often include arbitration clauses that make this dispute resolution process mandatory if disagreements arise. While courts generally support arbitration, they may not enforce clauses if a party was not informed they were forfeiting their right to litigation or if the clause is presented unfairly. The document outlines some concerns about mandatory arbitration clauses preventing whistleblowing, limiting class action lawsuits, and relying on a single arbitrator's decision. It also discusses alternative dispute resolution options like mediation and escalating issues to senior management.
The document discusses considerations for companies when mediating employment law disputes. It notes that mediation provides an opportunity to objectively assess case strengths, weaknesses, risks, and costs of continuing litigation, which can lead to settlement. However, mediation does not require settlement. The document outlines factors that can increase the likelihood of settlement through mediation, including selecting an experienced mediator, having appropriate representatives present, and mediating at different stages of litigation, each with their own dynamics. Early mediation before positions harden is discussed as one option that can motivate companies seeking a quick resolution.
April 2011 Part I What Every Executive Should Know About Dispute ResolutionRBCG1
The document discusses various dispute resolution options for business executives including mediation, arbitration, negotiation and litigation. It provides details on each process and notes that mediation and arbitration are generally better than litigation when future relationships are important. The document also summarizes the key steps and considerations for mediation and arbitration as the main alternative dispute resolution approaches.
Negotiations - the art of getting things doneRajThilak
The document discusses a three-dimensional approach to negotiation called 3-D Negotiation. The three dimensions are tactics, deal design, and set-up. Many negotiators focus only on tactics but overlooking deal design and set-up can undermine success. When negotiations stall, diagnosing the barriers is important before determining the best strategy. The barriers could be tactical, related to the deal structure, or due to flaws in how the negotiation is set up. The right approach may involve tactics, deal design changes, or altering the negotiation set-up and parties involved.
This document discusses workplace conflict and argues that mediation is often a better approach than litigation. It notes that Americans spend most of their waking hours at work, increasing opportunities for disputes. While laws protect employees and employers, going to court should not always be the first response to conflict. Mediation offers a cooperative alternative where parties work together to find mutually agreeable solutions, in contrast to arbitration or litigation which try to determine a right or wrong party. The benefits of mediation include keeping costs low, maintaining confidentiality, and allowing parties to craft their own resolution. Unresolved conflicts can negatively impact individuals' health and productivity as well as the overall work environment. Mediation provides a win-win approach to reduce these personal, social
This document discusses workplace conflict and argues that mediation is often a better approach than litigation. It notes that Americans spend most of their waking hours at work, increasing opportunities for disputes. While laws protect employees and employers, going to court should not always be the first response to conflict. Mediation offers a cooperative alternative where parties work together to find mutually agreeable solutions, in contrast to arbitration or litigation which try to determine a right or wrong party. The benefits of mediation include keeping costs low, maintaining confidentiality, and allowing parties to craft their own resolution. Unresolved conflicts can negatively impact individuals' health and productivity as well as the overall work environment. Mediation provides a win-win approach to reduce these personal, social
The newsletter summarizes a continuing legal education program presented by the Illinois State Bar Association's Section on Alternative Dispute Resolution regarding creatively resolving disputes for special education hearings under the Individuals with Disabilities Education Act. The program included an overview of state and federal laws governing special education, perspectives on resolving disputes from the school and student sides, observations from impartial due process hearing officers, and an interactive panel discussion. The newsletter also includes articles on tips for getting the best deal in mediation and Michigan enacting the Uniform Collaborative Law Act.
Negotiation Ethics For In House Counsel (S Cohen 04 14 11)scohen69
This document discusses ethics in negotiation for in-house counsel. It outlines rules regarding truthfulness, disclosure of material facts, and duties of confidentiality. It also analyzes several hypothetical scenarios that in-house lawyers may face during negotiations involving issues like undisclosed contamination, misleading statements, and discovery tactics. The document emphasizes that lawyers must balance zealous advocacy with honesty, and should avoid assisting client fraud. It concludes that in-house lawyers in particular must be aware of boundaries in ethical negotiations due to their unique client relationship.
Practical tips on choosing the right dispute resolution strategy, entering into enforceable agreements for ADR, and navigating complex matters such as arbitrations with an international component.
1) Contacting and compensating former employees can present legal and ethical issues for attorneys unless they are careful. In movies, former employees conveniently provide key evidence, but in reality attorneys must work to locate and convince them to cooperate.
2) Class action lawsuits are intended to enable individuals with small claims to collectively pursue litigation but often result in large payouts to attorneys while providing little compensation to class members. Studies show that in many cases where small cash amounts are awarded to large consumer classes, only a small percentage of class members actually receive settlement funds.
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2. In the Past, Dispute Resolution Took Many Forms
And the Outcome Could Be Uncertain
3. Some Overlooked “Collateral Damage” Aspects of
Disputes
• Uncertainty is damaging to a company in many, many
ways. Depending on the size of the conflict, it could make
lenders less interested in lending, customers concerned
about the future, etc.
• It is challenging for the owner-of-a-dispute to
compartmentalize a conflict to the point that it does not
spill over into the business executive’s personal life and
their effectiveness as a leader of the business.
• Any method of dispute resolution can be misused, for
example as a delaying tactic or method of preventing
forward progress, using up resources such as time and
money. Recouping this lost opportunity cost is nearly
impossible.
5. Two Essential Things Every Business Executive
Should Know About Litigation: #1
• ”Every legal dispute is a business problem requiring a
business solution.”
• “Instead of handing over disputes to the lawyers with a ‘you
take care of it’ attitude, managers need to take responsibility for
their disputes. They need the same negotiating skills they use
to close an acquisition or negotiate a contract to try to settle. If
a case goes to litigation, you have already lost. As Priceline
founder Jay Walker put it, it's not a matter of who wins, it's a
matter of who loses less.”
• “If the initial settlement efforts fail, the manager in charge
needs to continually reassess whether it makes sense to
continue litigation or put another offer on the table.”
Constance E. Bagley, “Using The Law To Strategic Advantage”, Harvard Business School,
Working Knowledge, December 12, 2005
6. Two Essential Things Every Business Executive
Should Know About Litigation: #2
• “Most civil litigation in federal court settles either during
pretrial discovery or right before trial ‘on the courthouse
steps.’ Settlements at the pleading stage are relatively
infrequent. Notoriously few civil cases in federal court are
tried.”
• “Particularly because most cases settle, pretrial discovery is
of critical importance. Pretrial discovery is often used to
determine the boundaries of settlement discussions.
Frequently, the amount of the settlement reflects the parties’
success or lack of it during the discovery process. “
• “If the case is one of the few cases which is tried, it is likely
that the parties’ presentations will rely heavily on evidence
they developed during discovery.”
Robert L. Haig and John P. Marshall, “Corporate Discovery Strategy In Complex Litigation”,
Law Department Management Adviser, Issue No. 217, April 1, 2001
7. Reject A Settlement Offer
and Do Better Going to Trial?
A recent ABA Journal article, “Most plaintiffs Who Reject
Settlement Offers Do Worse At Trial” found four things:
1. “The gamble of going to trial doesn’t pay off for most
plaintiffs, according to a study of more than 2,000 civil suits from
2002 to 2005.”
2. “Sixty-one percent of plaintiffs who turned down settlement
offers ended up faring worse at trial, according to a
New York Times story on the study. The average settlement offer
was $48,700 and the average award at trial was $43,000, a
difference of $5,700.”
ABA Journal Law News Now, Posted Aug 11, 2008, 06:49 am CDT, By
Debra Cassens Weiss
8. Reject A Settlement Offer and
Do Better Going to Trial?
3. “Defendants were wrong in just 24 percent of the
cases, but for them the cost of a bad gamble was much
larger. The average plaintiff’s settlement demand in those
cases was $770,900 and the average verdict was $1.9
million, a difference of more than $1.1 million.”
4. “Plaintiffs were more likely to make poor choices
about going to trial in contingency fee cases. On the
defense side, defendants were more likely to make poor
choices when there was no insurance coverage.”
ABA Journal Law News Now, Posted Aug 11, 2008, 06:49 am CDT, By
Debra Cassens Weiss
9. Simplified Overview: The Civil Litigation Process In
Nine Steps (with a flow diagram)
1. Plaintiff’s Summons and Complaint
2. Defendant’s Answer to the Complaint,
Affirmative Defenses, Counterclaims
3. Motions
4. Discovery (Depositions, Interrogatories,
Production of documents)
10. Simplified Overview: The Civil Litigation Process In
Nine Steps (with a flow diagram)
1. Pre-Trial Conference and Motions
2. Jury Trial or Bench Trial
3. Judgment
4. Motions After Trial and Appeals
5. Enforcement of Judgment
11. A FLOW DIAGRAM
FOR A CIVIL
LAWSUIT
Prepared by TFC-Associates.com
http://www.tfcassociates.com/suit.html
12. What Do Litigators Charge?
• A straight hourly rate can range
from three to four figures.
• There are many variations to the
straight billable hour.
• Joel A. Rose & Associates, Inc.,
Management Consultants to Law
Offices, lists 21 different creative
billing arrangements that law
offices are using as alternatives to
the straight billable hour.
(http://www.joelrose.com/articles/creative_billing_arrangements.html.)
13. “Traditional litigation is a mistake
that must be corrected…For some
disputes trials will be the only
means but for many claims trial be
adversarial contest must go the
way of ancient trial by combat…
Our system is too costly, too
painful, too destructive, too
inefficient for really civilized
people.”
Quoted in “The Reasons for Mediation’s Bright Future” by
Edna Sussman, NYSBA New York Dispute Resolution
Lawyer, Fall 2008, vol. 1, no 1. p 57
Warren E. Burger,
former Chief Justice United States Supreme
Court
14. “The notion that most people
want black-robed judges, well-
dressed lawyers, and fine
paneled courtrooms as the
setting to resolve their dispute
is not correct. People with
problems, like people with
pains, want relief, and they
want it as quickly and
inexpensively as possible.quot;
Warren E. Burger,
former Chief Justice United States
Supreme Court
http://adr.navy.mil/adr/slideshows.asp
16. Five Memorable Thoughts About Negotiation
1. “Let us being anew,
remembering on both
sides that civility is not a
sign of weakness, that
sincerity is always
subject to proof. Let us
never negotiate out of
fear, but let us never
fear to negotiate. “
President John F. Kennedy, in an address to the United Nations
General Assembly
17. Five Memorable Thoughts About Negotiation
2. “ We cannot
negotiate with those
who say: ‘What’s
mine is mine, and
what’s yours is
negotiable.”
18. Five Memorable Thoughts About
Negotiation
• 3. “Negotiation is a process in which people learn to
accept an available compromise as a satisfactory
substitute for that which they thought they really
wanted.”
• 4. “Negotiation is the sum of all the ways in which
we convey information about what we want, what
we desire, and what we expect from other people---
as well as how we receive information about other
people’s wants, desires, and expectations.”
---George H. Ross, Esq., Executive Vice President and Senior Counsel for the
Trump Organization
19. Five Memorable Thoughts About
Negotiation
• 5. “If you can’t go around it, over it, or
through it, you had better negotiate with
it.”
---Ashleigh Brilliant
20. A Three Point Perspective: Negotiation As A Foundation For A
Successful Relationship
• 1. “To begin with, almost all negotiations have
conflicts and how the parties deal with those
conflicts can set an important precedent as to how
different types of conflicts will be dealt with in the
future. To the extent that disagreements arise,
lawyers should consider — rather than engaging in
costly e-mail wars demanding concessions based
on the insistence that quot;their way is the right wayquot; —
working to foster a method of handling the conflict
that is most likely to quickly resolve it. An example?
Identify real business issues quickly and have the
business parties discuss them in as amicable a
manner as is possible.”
ABA Section of Business Law Volume 12, Number 5 - May/June 2003 , Win the Battle or Build
a Relationship? How Japanese Style Could Help American Negotiators. By Darin Bifani
21. A Three Point Perspective: Negotiation As A Foundation
For A Successful Relationship
• 2. “Negotiating lawyers can also help strengthen the
business relationship of the parties by avoiding words and
actions that are likely to embarrass or surprise the other party
and use words and actions, which, as much as possible, put
the counterparty and the business relationship in a positive
and long-term light. Skilled negotiators typically have an
arsenal of adversarial tactics at their disposal, such as
mastery of technical minutiae, which others do not completely
understand. This can surprise the other side with
uncomfortable or unflattering data or corner less skilled
negotiators with references to sources or facts that they may
not know. “
ABA Section of Business Law Volume 12, Number 5 - May/June 2003 , Win the Battle or Build
a Relationship? How Japanese Style Could Help American Negotiators. By Darin Bifani
22. A Three Point Perspective: Negotiation As A Foundation
For A Successful Relationship
• 3. “While these tactics may win concessions on
contractual language in a crowded negotiating
room, they also can leave a lasting negative
impression in the mind of the other party. As one
lawyer once mentioned, it is often a good idea to
share potentially damaging or explosive information
with the other side before discussing it in public
because, among other reasons, the counterparty in
negotiations quot;may often be your client's client.quot;
ABA Section of Business Law Volume 12, Number 5 - May/June 2003 , Win the
Battle or Build a Relationship? How Japanese Style Could Help American
Negotiators. By Darin Bifani
23. Principles of Negotiation: Getting To Yes—
Negotiating Agreements Without Giving In
• Separate people issues/relationship issues from substantive
problem issues,
• By Focusing on interests not positions.
• Search for mutual options for mutual gains that satisfy the
parties interests (Avoid: making premature judgments;
searching for the single answer; assuming the pie is fixed in
size; thinking that solving their problem is their problem)
• Insist of using objective criteria or standards of what is
realistically fair and reasonable.
• Have a Best Alternative to a Negotiated Agreement
(“BATNA”)
24. Eleven Additional Important Points
About Negotiation
1. “It's easy to come up with a recipe for disaster
when the subject is negotiation. As in chess, once
you sit down at the table every move counts. So
many factors compete to undermine an optimal
settlement: the emotions of both participants; the
potential for misunderstanding what could be
gained (or lost); differing interpretations of what
constitutes fair play.”
---Martha Lagace, “The Art of Negotiation”, Harvard Business School Working Knowledge, May 23, 2000
25. Eleven Additional Important Points
About Negotiation
2. “The cooperative approach to negotiation postulates that all
parties must come away having gained something.”
3. “There are three things you need to know in understanding
negotiation. First, it is not a science. Second, it is not a
situation in which winning is everything. Third, it is not an
event with continuity—the parties involved, their motives,
and their goals are all different and are all subject o change
at any moment during the course of the negotiation.”
---George H. Ross, Esq., Executive Vice President and Senior Counsel for the
Trump Organization
26. Eleven Additional Important Points
About Negotiation
4. “Find common ground with the other side.”
5. “Establish a good rapport.”
6. “Be a nice person to deal with.”
7. “Find the appropriate level of communication.”
8. “Understand the other side and its needs.”
9. “Cement feelings of trust.”
10. “Learn flexibility.”
11. “Become known as a deal maker and not as a deal
breaker.”
---George H. Ross, Esq., Executive Vice President and Senior Counsel for the
Trump Organization