LS311 Business Law Sundays 9:00 p.m. – 10:00 p.m. EST March 21, 2012 – May 29, 2012 Melissa Borrelli, Esq.

Agenda Course Housekeeping Assignments Alternative Dispute Resolution

Case Analysis Would the new homeowners be bound by the arbitration agreement, or could they sue the builder, Osborne, in court? (Baker v. Osborne Development Corp., 159 Cal.App.4th 884,71 Cal.Rptr.3d 854 (2008) In responding to the question be sure to: –Discuss what courts are saying about the enforcement of arbitration clauses in contracts. –Utilize the decision in the NCR Corp v. Korala Associates, Ltd. as a basis for answer. For more information on this case go to 06.pdfhttp:// 06.pdf –Minimum of one full page (not including the cover and references pages), double spaced, twelve-point, Times New Roman font.

Writing Assignment As pedestrians exited at the close of an arts and crafts show, Jason Davis, an employer of the show's producer, stood near the exit. Suddenly, without warning, Davis turned around and collided with Yvonne Espostio, an 80- year-old woman. Esposito was knocked to the ground, fracturing her hip. After hip replacement surgery, she was left with a physical impairment. Esposito filed suit in a federal district court against Davis and others, alleging negligence. In your paper, answer the following questions: –What are the factors that indicate whether Davis owed Esposito a duty of care? –What do those factors indicate in these circumstances?

Writing Assignment Minimum of one full page (not including the cover and references pages), double spaced, twelve-point, Times New Roman font. Use the Sample APA paper posted in Doc Sharing— cover page, references page Use the Writing Center Read the rubrics Label your projects: username-project-unit#.doc. For example, a student named Tina Allen would name her file TAllen-CriminalLawEssay-Unit3.doc. Submit your assignment by selecting the appropriate Dropbox by the end of the unit. Use the Assignment Guide , call, or IM me with questions

Alternative Dispute Resolution (ADR) What is ADR? –Dispute resolution processes and techniques that act as a means for disagreeing parties to come to a resolution short of litigation –Such procedures are usually less costly and more efficient than litigation. –In the employment context ADR is utilized by an employee knowingly entering into an agreement with his/her company to resolve current or future conflicts that arise in the workplace through one of or a combination of ADR procedures.

ADR What is the purpose of ADR? –The purpose of ADR is to resolve conflict in a more cost-effective and expedited manner while fostering long term relationships. –More than 90 percent of cases are settled before trial through some form of ADR. –Most states either require or encourage parties to undertake ADR prior to trial. –Many federal courts have instituted ADR programs.

ADR What are forms of ADR? –Negotiation, mediation, arbitration, collaborative law, restorative justice

Negotiation Negotiation – a dialog between parties, a give and take Assisted Negotiation – may include an ombudsman, attorneys, consultant, other experts, or trusted advisors

Negotiation Less than 10% of cases reach trial. Negotiation is informal discussion of the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case. Successful negotiation involves thorough preparation, from a position of strength.

Mediation Mediation – a third party (the mediator) acts as a go-between for the parties, souped-up negotiation with formalities lacking negotiation, mediator may or may not make a suggestion for settlement, generally voluntary, though sometimes not by court order or contract. Generally, a mediator will have had extensive related experience in labor negotiations or in the field of law, and will be trained and experienced in employee conflicts that arise in the workplace. The recommendations of a mediator are non- binding.

Mediation Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine “common ground.” –Advantages: few rules, customize process, parties control results (win-win). –Disadvantages: mediator fees, no sanctions or deadlines.

Arbitration Arbitration – aka “private judge,” the matter referred to a neutral party, rules of civil procedure and/or evidence may or may not be followed, the arbitrator makes a decision to which the parties agree to be bound, generally binding (i.e., no opportunity for appeal).

Arbitration Many employment contracts have binding arbitration clauses. Settling of a dispute by a neutral 3 rd party (arbitrator) who renders a legally-binding decision; usually an expert or well- respected government official. Mandatory arbitration in employment agreements are generally enforceable. –NCR Corp. v. Korala Associates, Ltd. (6 th Circuit, 2008).

Arbitration Arbitration – Often an employee (or party to a contract) must either agree to accept binding arbitration as a condition of employment or as part of a contract well in advance of any anticipated conflict, or agree to resolve specific existing disputes by way of arbitration. Binding arbitration is quite often upheld by courts, even when the relative power of the parties to a contract is uneven (think, Average Joe Consumer v. IBM).

Arbitration Results may be unpredictable because arbitrators (generally) do not have to follow precedent or rules of procedure or evidence. Arbitrators do not have to issue written opinions. Generally, no discovery available.

Arbitration Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award. Courts are not involved in arbitration unless an arbitration clause in a contract needs enforcement.

ADR and the Courts States in which one or more local state court has— States in which one or more federal court has— ArbitrationMediationArbitrationMediation Alabama Alaska Arizona California Delaware Florida Georgia Hawaii Illinois Michigan Minnesota Missouri Nevada New Hampshire New Jersey New Mexico New York North Carolina Ohio Oregon Pennsylvania Rhode Island Texas Washington Alabama Alaska Arizona California Connecticut Delaware Florida Georgia Hawaii Indiana Illinois Iowa Kansas Kentucky Louisiana Maine Michigan Minnesota Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Alabama Arizona California Connecticut Florida Georgia Idaho Michigan Missouri New Jersey New York Ohio Oklahoma Pennsylvania Rhode Island Texas Utah Washington California Delaware Florida Indiana Kansas Kentucky Louisiana Minnesota Missouri Nebraska New Jersey New York North Carolina Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina Tennessee Texas Utah Virginia West Virginia Washington Wisconsin Source: Richard Reuben, “The Lawyer Turns Peacemaker,” ABA Journal (August 1996), p. 56.

ADR

Collaborative law – used quite frequently in family law cases, use mediators and other professionals (including counselors and social workers) to come to an agreement regarding dissolution and child custody issues Binding mediation

ADR Mini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3 rd party (e.g., a retired judge) who renders a non-binding “verdict.” This facilitates further discussion and settlement. Summary Jury Trials in federal courts. Conciliation: 3 rd party assists in reconciling differences.

ADR Med-arb Every industry (see link)link Restorative justice – make the victim whole –

Online ADR Also called ODR. Uses the Internet to resolve disputes. Still in its infancy but is gaining momentum. ICANN (arbitration). VMAG project. CAN-WIN conferencing system.

ADR Whole new world with respect to Internet related issues, thus the Internet Corporation for Assigned Names and Numbers – Online negotiation and dispute resolution – Specialized courts and magistrates

ADR Question An arbitrator’s decision has the binding force of law, but in some arbitration proceedings, the arbitrator need not be a judge or even a lawyer. How, then, can the arbitrator's decision have the force of law and be binding on the parties involved?

ADR Answer An arbitrator’s decision has the binding force of law only because the two par­ties in an arbitration proceeding agree (contract) to be legally bound by the arbitrator’s decision. The success of arbitration, and its status as an alternative to court settlement of disputes, rests on this underlying agreement between the parties to be bound by the results. If a person feels that an arbitrator’s opinion is unjust, in some cases, that person may appeal the dispute to a court. Courts, however, are very reluctant to judge the validity of an arbitrator’s decision, which is regarded as final in all cases except where serious misconduct or corruption can be proved.

ADR Resources American Arbitration Association CPR Institute for Dispute Resolution Judicial Arbitration and Mediation Services Federal Mediation and Conciliation Services Labor Policy Association Equal Employment Opportunity Council NASD National Labor Relations Board New York Stock Exchange Securities Exchange Commission

NEXT WEEK’S SEMINAR During next week's Seminar, we will discuss defenses to criminal liability. Be ready to discuss the Defenses to Criminal Liability questions listed in the classroom.