1. Alternative Dispute Resolution Systems5
Alternative Dispute
Resolution Systems

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

3. 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

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

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

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

7. 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

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

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

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

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

12. 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

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

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

15. 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

16. 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

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

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

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

20. 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

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

22. 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?