Chapter 3 Legal Representation and Alternative Dispute Resolution
Roles of an Attorney <ul><li>Adviser  – advises a client on steps to take to avoid possible legal problems. </li></ul><ul>...
Attorney-Client Relationship <ul><li>A client must disclose all relevant information to his or her attorney so the attorne...
Role of the Court <ul><li>Search for truth is served by adversarial positions. </li></ul><ul><li>Dispute must be a ‘real’ ...
Decision to File a Lawsuit <ul><li>Factors include: </li></ul><ul><ul><li>Whether the law provides a remedy. </li></ul></u...
Decision to Defend  Against a Lawsuit <ul><li>Factors include: </li></ul><ul><ul><li>Whether the relationship with the pla...
The Search for  Alternatives to Litigation <ul><li>Forms of ADR include: </li></ul>Negotiation Summary Jury Trial Mediatio...
Negotiation and Mediation <ul><li>Alternative dispute resolution methods differ in the degree of formality involved and th...
Negotiation and Mediation <ul><li>Negotiation:  The parties come together, with or without attorneys to represent them, an...
Arbitration <ul><li>A more formal method of ADR in which the parties submit their dispute to a neutral third party, the ar...
The Federal Arbitration Act <ul><li>The Federal Arbitration Act (FAA) does not establish a set arbitration procedure. </li...
State Arbitration Statutes <ul><li>Thirty-four states and the District of Columbia have adopted the Uniform Arbitration Ac...
The Arbitration Process <ul><li>The three steps of arbitration are: </li></ul>
Enforcement of Agreements to Submit to Arbitration <ul><li>When a dispute arises as to whether or not the parties have agr...
Setting Aside an  Arbitration Award <ul><li>No award will be enforced if compliance with the award would result in commiss...
Setting Aside an  Arbitration Award <ul><li>An arbitration award may also be set aside because of defects in the arbitrati...
Setting Aside an  Arbitration Award <ul><li>Arbitration awards may be set aside for a number of reasons, but courts do not...
Disadvantages to Arbitration <ul><li>Arbitration has some disadvantages: </li></ul><ul><ul><li>Unpredictable, since arbitr...
The Integration of ADR and Formal Court Procedures <ul><li>Many jurisdictions at both the state and federal levels are int...
Court Annexed ADR <ul><li>Some states require the parties to undergo non-binding arbitration before proceeding to trial. <...
Court-Mandated ADR <ul><li>Most states (and about half the federal courts) have adopted programs to encourage the parties ...
Court-Related Mediation <ul><li>Today, courts are increasingly turning to mediation rather than arbitration as an alternat...
Summary Jury Trials <ul><li>A kind of trial in which litigants present their arguments and evidence and the jury renders a...
ADR Forums and Services <ul><li>Services facilitating dispute resolution outside the courtroom are provided by both govern...
International  Dispute Resolution <ul><li>Forum selection and choice-of-law clauses. </li></ul><ul><ul><li>Designate the j...
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Miller • Cross 4th Ed. © 2005 by West Legal Studies in ...

  1. 1. Chapter 3 Legal Representation and Alternative Dispute Resolution
  2. 2. Roles of an Attorney <ul><li>Adviser – advises a client on steps to take to avoid possible legal problems. </li></ul><ul><li>Drafter – writes contracts and other documents for clients. </li></ul><ul><li>Negotiator – persuades, argues, or settles with another party on a client’s behalf. </li></ul><ul><li>Advocate – presents a client’s position in court. </li></ul>
  3. 3. Attorney-Client Relationship <ul><li>A client must disclose all relevant information to his or her attorney so the attorney can determine the best course of action. </li></ul><ul><li>The attorney must keep the information confidential—the attorney-client privilege prevents a court and other government bodies from compelling disclosure of the information. </li></ul>
  4. 4. Role of the Court <ul><li>Search for truth is served by adversarial positions. </li></ul><ul><li>Dispute must be a ‘real’ dispute with a tangible injury or the immediate threat of one. </li></ul><ul><li>Court rules on questions of law and admissibility of evidence. </li></ul>
  5. 5. Decision to File a Lawsuit <ul><li>Factors include: </li></ul><ul><ul><li>Whether the law provides a remedy. </li></ul></ul><ul><ul><li>Whether the person can expect to prevail. </li></ul></ul><ul><ul><li>Whether the expected benefit will compensate for expenses and other costs, including any business lost as a result of the lawsuit and accompanying publicity. </li></ul></ul><ul><ul><li>Settlement Considerations. </li></ul></ul>
  6. 6. Decision to Defend Against a Lawsuit <ul><li>Factors include: </li></ul><ul><ul><li>Whether the relationship with the plaintiff is too valuable to risk. </li></ul></ul><ul><ul><li>Whether the publicity surrounding a trial would damage the defendant’s reputation or image. </li></ul></ul><ul><ul><li>Whether the dispute could be resolved in a less costly manner. </li></ul></ul>
  7. 7. The Search for Alternatives to Litigation <ul><li>Forms of ADR include: </li></ul>Negotiation Summary Jury Trial Mediation Mini-trial Rent-a- Judge Arbitration
  8. 8. Negotiation and Mediation <ul><li>Alternative dispute resolution methods differ in the degree of formality involved and the extent to which third parties participate in the process. </li></ul><ul><li>What is the primary difference between negotiation and mediation? </li></ul>
  9. 9. Negotiation and Mediation <ul><li>Negotiation: The parties come together, with or without attorneys to represent them, and try to reach a settlement without the involvement of a third party. </li></ul><ul><li>Mediation: The parties themselves reach an agreement with the help of a third party, called a mediator, who proposes solutions. </li></ul>
  10. 10. Arbitration <ul><li>A more formal method of ADR in which the parties submit their dispute to a neutral third party, the arbitrator, who renders a decision, which may or may not be legally binding, depending on the circumstances. </li></ul><ul><li>Some courts refer certain cases for arbitration before allowing the cases to proceed to trial; in most cases, this kind of arbitration is nonbinding on the parties. </li></ul>
  11. 11. The Federal Arbitration Act <ul><li>The Federal Arbitration Act (FAA) does not establish a set arbitration procedure. </li></ul><ul><li>The FAA provides the means for enforcing the arbitration procedure that the parties have established for themselves. </li></ul><ul><li>The FAA covers any arbitration clause in a contract that involves interstate commerce—even where the business activities may have remote connections or minimal effects on interstate commerce. </li></ul><ul><li>Does the FAA Employment Contracts? Case 3.1 Circuit City Stores, Inc. v. Adams (2003). </li></ul>
  12. 12. State Arbitration Statutes <ul><li>Thirty-four states and the District of Columbia have adopted the Uniform Arbitration Act, under which courts generally give full effect to voluntary agreements to arbitrate disputes between private parties. </li></ul><ul><li>Those states that have not adopted the Uniform Act nonetheless follow many of the practices specified in it. </li></ul>
  13. 13. The Arbitration Process <ul><li>The three steps of arbitration are: </li></ul>
  14. 14. Enforcement of Agreements to Submit to Arbitration <ul><li>When a dispute arises as to whether or not the parties have agreed to submit a particular matter to arbitration, one party may file suit in court to compel arbitration. </li></ul><ul><li>The court’s role is essentially interpreting a contract, either the arbitration clause or submission agreement, to determine to what the parties have committed themselves. </li></ul><ul><li>Case 3.2 Morrison v. Circuit City Stores, Inc. (2003). </li></ul>
  15. 15. Setting Aside an Arbitration Award <ul><li>No award will be enforced if compliance with the award would result in commission of a crime or would violate public policy. </li></ul>
  16. 16. Setting Aside an Arbitration Award <ul><li>An arbitration award may also be set aside because of defects in the arbitration process: </li></ul><ul><ul><li>Award was result of corruption, fraud, etc. </li></ul></ul><ul><ul><li>The arbitrator exhibited bias or corruption. </li></ul></ul><ul><ul><li>The arbitrator’s actions substantially prejudiced the rights of one of the parties. </li></ul></ul><ul><ul><li>The arbitrator exceeded his or her powers. </li></ul></ul>
  17. 17. Setting Aside an Arbitration Award <ul><li>Arbitration awards may be set aside for a number of reasons, but courts do not generally look at the merits of the dispute, the sufficiency of the evidence presented, or the arbitrator’s reasoning in reaching a particular decision. </li></ul><ul><li>Since the parties freely contracted to enter into arbitration, the courts will not interfere simply because one side feels that it received a “bad bargain.” </li></ul>
  18. 18. Disadvantages to Arbitration <ul><li>Arbitration has some disadvantages: </li></ul><ul><ul><li>Unpredictable, since arbitrators are not required to follow prior precedents, but must only follow whatever rules have been provided by the parties. </li></ul></ul><ul><ul><li>Expensive, sometimes as expensive as litigation. </li></ul></ul><ul><ul><li>Time consuming, since discovery is often unavailable, the parties may have to call more witnesses than they would in litigation. </li></ul></ul>
  19. 19. The Integration of ADR and Formal Court Procedures <ul><li>Many jurisdictions at both the state and federal levels are integrating alternative dispute resolution into the formal legal process. </li></ul><ul><li>Utilizing methods such as arbitration and mediation within the traditional framework may relieve the logjams afflicting most of the nation’s court systems. </li></ul>
  20. 20. Court Annexed ADR <ul><li>Some states require the parties to undergo non-binding arbitration before proceeding to trial. </li></ul><ul><li>Note that in court-annexed arbitration, either party may reject the award. </li></ul>
  21. 21. Court-Mandated ADR <ul><li>Most states (and about half the federal courts) have adopted programs to encourage the parties to settle their disputes through ADR. </li></ul><ul><li>Some courts require parties to submit to ADR before proceeding to trial. </li></ul>
  22. 22. Court-Related Mediation <ul><li>Today, courts are increasingly turning to mediation rather than arbitration as an alternative to litigation. </li></ul><ul><li>One reason for its popularity is that its goal, unlike litigation, is for opponents to work out a resolution that benefits both sides, resulting in a high rate of satisfaction with the outcome. </li></ul>
  23. 23. Summary Jury Trials <ul><li>A kind of trial in which litigants present their arguments and evidence and the jury renders a nonbinding verdict. </li></ul>
  24. 24. ADR Forums and Services <ul><li>Services facilitating dispute resolution outside the courtroom are provided by both government agencies and private organizations. </li></ul><ul><li>Sources of private arbitration services include: </li></ul><ul><ul><li>American Arbitration Association (AAA). </li></ul></ul><ul><ul><li>State and local arbitration organizations. </li></ul></ul><ul><ul><li>Better Business Bureau. </li></ul></ul><ul><ul><li>Industry-wide programs. </li></ul></ul><ul><ul><li>Online Forums </li></ul></ul><ul><ul><ul><li>Negotiation services: e.g., Cybersettle.com. </li></ul></ul></ul><ul><ul><ul><li>Arbitration services: CAN-WIN conferencing system. </li></ul></ul></ul>
  25. 25. International Dispute Resolution <ul><li>Forum selection and choice-of-law clauses. </li></ul><ul><ul><li>Designate the jurisdiction of court or country over a contract. </li></ul></ul><ul><ul><li>What about enforcement of awards? </li></ul></ul><ul><li>Arbitration Clauses. </li></ul><ul><ul><li>The ‘New York Convention.’ </li></ul></ul><ul><ul><li>AAA. </li></ul></ul><ul><ul><li>International Chamber of Commerce. </li></ul></ul>

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