Alternative Dispute Resolution Systems 5 Alternative Dispute Resolution Systems

Alternative Dispute Resolution Systems Expense Time, Cost, Emotions Most Least Trial & Appeal Mock Trial Negotiated Settlement Minitrial Arbitration Mediation

Reasons For Settlement Without Litigation Costs Attorney’s Fees Court Costs Personal Reasons Compromise Is Instinctive Dislike Of Trouble Opinion Of Others Business Reasons Bad For Business Sympathetic Juries

Types Of Negotiations Position-Based- Parties State Opinions Interest-Based

Positional Negotiation High Price Buyer’s Resistance Point Zone of Agreement Seller’s Resistance Point Low Price

Positional Negotiation High Price Seller’s Resistance Point No Zone of Agreement Buyer’s Resistance Point Low Price

Interest-Based Negotiations- Elements Communication- Share Complaint, Joint Problem Relationship- Discuss Benefits By Continuing Interests- Mutually Exclusive? Options- Not A Proposal For Compromise Legitimacy- Accepted Standards Alternatives- Possible Outcomes Without Negotiation Commitment- Realistic

Mediation Third Party Assists In Resolving Dispute- Avoid Litigation Parties Agree To Use Reduces Court Caseload- No Judicial Review Settlement = Mutual Choice

Mediation Advantage To Parties Disadvantage Determine To Pursue Retain Control Of Outcome Disadvantage No Enforcement Selection Mediator- Qualifications

Mediation Procedures Informal- Controlled By Parties Mediator Parties Opening Statement/Rules Parties View Statement Exchange Discuss Options- Caucus Agreement Written/Signed

Federal Arbitration Act Enacted 1925 Revised/Reenacted 1947 Policy Interstate Commerce Favors Use State Law- Supremacy Of U.S. Constitution/Commerce Clause

Typical Arbitration Contracts Stockbroker & Client Commodities Broker & Customer Brokerage Firm & Employee Attorney & Client Collective Bargaining Owner-Contractor & Contractor-Subcontractor Insurance Co. & Insured Public Carrier & Shipper

Arbitration Third Party (Arbitrator) Makes Final Decision Mandatory v. Voluntary Final Decision (Award)- Binding Reasons Quick/Inexpensive Resolution Ease Court Dockets Expert Assistance

Arbitration- Submissions Parties Agree To Arbitration- Written Specific Matters Agreed To Arbitrate Matters For Arbitration Questions Of Fact Questions Of Law Fact & Law

Arbitrators Chosen By Disputing Parties Expertise Number = 1 – 3 Knowledge of “Common Law Of Shop” Beyond Legal Expertise Number = 1 – 3 Authority- Granted By Agreement

Arbitration- Awards Required- Disclosure Of Findings & Reasons Opinion Letter Parties Frame Issues Define Arbitrator’s Scope Court Favors Award Final On Submitted Issues- Filed With Court Clerk

Mandated Arbitration States Adopting Speeds Up Process Many Qualified Arbitrators Types Of Cases <$15,000 Specific Subject Matter Record Of Proceedings Required

Mandatory Arbitration- Procedures Submit Claim Discovery Arbitrator Determines: Admissibility Of Evidence Law/Facts Of Case Objections 8 Months Hearing

Voluntary And Contract-Based Arbitration Parties Agree To Method By: Original Agreement/Contract Parties Agreement Arbitration Clause- Does Not Specify Cost

Judicial Review Of Arbitration Voluntary/Contract-Based Award Is Final Findings Of Fact/Law- Conclusive Limited Correct Fraudulent/Arbitrary Actions/Against Public Policy Statutorily-Mandated In Accord With Procedural/Due Process Law De Novo Federal Arbitration Act

Other ADR Alternatives Combination Mock Trial Citizen Review Reality For Plaintiff Minitrial- Confidential Focus On Central Issues Back To Business Problem

Business Decision: Managing Complaints What Steps Should You Take To Discover The Reasons Customers Are Filing Complaints? What Is The Distinction Between Mediation & Arbitration? Should Your Company’s Sales Contracts Include A Clause That Requires The Parties To Attempt Resolution Of Dispute By Mediation? By Arbitration? By Some Other Mechanism? If Your Company’s Sales Contracts Did Include A Dispute Resolution Clause, When Can The Courts Still Be Used?