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Final Exam Study Guide

by: Bri Perl

Final Exam Study Guide SPEA-V435

Bri Perl
GPA 3.61
Negotiation and Arbitration
Nan Stager

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Final exam study guide, lecture notes, quiz question answers
Negotiation and Arbitration
Nan Stager
Study Guide
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This 0 page Study Guide was uploaded by Bri Perl on Sunday December 13, 2015. The Study Guide belongs to SPEA-V435 at Indiana University taught by Nan Stager in Summer 2015. Since its upload, it has received 36 views. For similar materials see Negotiation and Arbitration in Linguistics and Speech Pathology at Indiana University.

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Date Created: 12/13/15
Final Exam Study Guide V435 Hybrid Processes o A combination of elements of the primary dispute resolution processes into a new and unique ADR process 0 Gain the best attributes of 2 or more processes negotiation mediation arbitration non binding evaluation to tailor dispute resolution to t the con ict Binding Hybrid Processes 0 Private Judge Privately selected and paid former judge who decides the case and then forwards decision to court for enforcement quotLooks like arbitration combined with adjucationquot Advantages Voluntary Faster convenient ef cient Private and exible Choosejudge Bene ts of adjucation binding but appealable Relieves caseload pressures on public courts Cases START in court civil cases or small claims not criminal Disadvantages MedArb Rich mans justice will only wealthy be able to take advantage 2 tiered justice system one judge for rich one for poor Secret trials will issues be hidden from public Cutinline to appellate courts longer lines in appellate courts Brain drain will more experienced judges leave to become private judges to make more less experienced to public Undermines court reformmost able to improve courts opt out o Dispute resolution process that utilizes a neutral 3rd party to rst mediate and then arbitrate any issues not settled through mediation Used when mediation would be advantageous to both parties but a nal decision is needed 0 MEDARB SAME 0 Advantages Neutral is familiar with case can make better informed decision Neutral can encourage parties to settle by hinting at decision Efficient use of time mediator and arbitrator is the same 0 Disadvantages Processes cannot be combined wout compromising integrity of each 0 Can be coercive mediators should not have power Parties tend to quotcoopt the mediator Parties withhold information during mediation Facts in mediation may affect arbitration decision Arbitrators tend to order compromise awards quotscrewing up each process medarb corrupts itquot MEDARB DIFFERENT different arbitrator and mediator 0 Advantages Different neutrals preserves integrity of both processes 0 Disadvantages Takes more time MEDARB DIFFERENT W Mediator advisory opinion 0 Advantages Quick and efficient Can serve as reality check BATNA Can serve as basis for settlement or withdrawal Weeds out frivolous cases from arbitration o Disadvantages Coercive Winner may want to go on to arbitration Problem of incorrect recommendation ArbMed o Arbitration hearing is held rst arbitrators award is sealed Then parties mediate If mediation fails award is revealed 0 Advantages Gives parties incentive to moderate their position Avoids arbitrator bias Can save time if same neutral already knows facts 0 Disadvantages May escalate con ict by starting adversarialy May end mediation prematurely Neutral may steer parties toward his or her decision If mediation works you ve wasted time on arbitration o NonBinding Hybrid Processes NonBinding Evaluation 0 Processes that seek to avoid adjucation by providing the parties with neutral information or assessment so they can better negotiate a settlement 0 O Used in legal disputes evaluate the outcome of the dispute if taken to court result of processes is a non binding opinion which is followed by renewed negotiations Form of assisted negotiation ask neutral to give non binding decision quot neutral comes in at the end of the processes they go back to negotiation based on neutrals opinionquot Judicial Settlement Conference court connected sounds like medarb 0 An informal meeting during a pretrial conference where the judge assigned to the case assists the parties in settlement discussions Settlement conferences are pretrial proceedings Judge may act as mediator provide legal clari cations and propose possible settlements Not mediation judge HAS decision making power over the parties Neutral Expert Evaluation 0 An expert in the subject matter of the dispute evaluates the issues and gives a nonbinding opinion regarding the facts of the dispute Neutral non binding opinion can help sort out quotDataquot or rights based disputes Used in complex technical or scienti c disputes where differing views of facts make BATNA determination difficult and parties want to settle Early Neutral Evaluation 0 Neutral attorney with expertise in the subject matter of the case meets with the parties and their lawyers after the case is led B4 the trial Neutral attorney gives a nonbinding evaluation of strengths and weaknesses of the case to the parties Goal neutral eval will help parties become realistic and aid parties in their settlement B4 putting too much money into H ga on Summary Jury Trial 0 Pretrial proceeding for complex civil cases that are headed for jury trial parties attorneys present short summaries of cases to a jury who returns a consensus an quotadvisory verdictquot Presided over by the judge jury selected in normal way Attorneys may directly question the jury after they give their advisory verdict 0 Mini Trial Attorneys and parties then attempt to negotiate a settlement with the help of the judge and aided by info from the jury 0 Summary presentations of a case are made by attorneys for each party to a panel with a neutral advisor and a decision maker for each side Neutral makes assessments of strengths and weaknesses of the case Decision makers for each side then attempt to negotiate a resolution judge serves as mediator Used in corporate disputes but can be use in any where the parties agree to it Settlement Special Master summary case idea but you present to a real jury 0 Court appointed neutral who explores or designs settlement options in complex class action cases Designs all details of a possible settlement plan for the approval of the parties in order to settle pending litigation quotdesign a processquot May serve as the administratorcase manager of the settlement plan or may function as a mediator Interestbased approach used to resolve multiissue multi party decisions Ombudsman 0 An ombuds is a person appointed to hear Complaints and grievances Conduct fact nding investigations Help resolve disputes or Make suggestions on best way to resolve disputes in corporations universities and governmental entities o Informal complaint and dispute manager 0 Characteristics lndependence independent from other organizational entities lmpartiality don t take sides or take anything personally Con dentiality most important people tell you con dential info lnformality don t make bidning decisions or adjucate Types of omnbuds 0 Public sector ombuds Appointed public of cial whose purpose is to 0 Help citizens with their complaints against government 0 Help citizens cut through government bureaucracy 0 Private Sector Ombuds An employee of a company whose purpose is to help resolve workplace and customer disputes and make policy recommendations to management and to improve operations 0 Purpose 0 To improve internal morale and improve corporate image 0 To increase operating efficiency 0 To provide a forum to address con ict Courts and ADR o Courts serve as a source of rules that Provide a context for negotiating serve as BATNA and objective criteria laws and precedents and resolve disputes when other options fail 0 Changing role of courts Judges manage caseloads in addition to deciding cases Courts support settling cases short of trial 0 ADR supports quotprivate orderingquot Courts support people making decisions about their private lives 0 Emergence of collaborative law Legal advocacy characterized by a contractual commitment by clients and their attorneys to resolve their legal dispute through interestbased negotiation o ADR as Appropriate Dispute Resolution 0 Cases that should go to court Constitutional claims Matters of life and death Issues of liberty To set a precedent Legal reformsocial justice Issues of broad public concern Cases that do not settle via other processes 0 ADR Laws matching on test 0 Alternative Dispute Resolution Act 1988 Requires federal district court to implement a dispute resolution program for civil cases that provides at least one ADR process and to encourage ADR at any stage 0 Administrative Dispute Resolution Act of 1990 Requires federal agencies to adopt dispute resolution procedures for a variety of their functions regulating enforcement rulemaking personnel matters 0 Civil justice Reform Act of 1990 Requires every federal district court to implement a civil iustice exoense and delav reduction plan authorized referrals to ADR 0 Uniform Medication Act 2001 Draft of uniform standards for mediation laws for all states pending adoption 0 Negotiated Ruemaking Act of 1990 Federal law that outlines the following 0 Agency selects a rule as a candidate for regneg Agency convenes process and determines membership 0 Agency hires professional facilitatormediator Group establishes set of protocols consensus def agency reps with decision making authority 0 Once consensus on rule is reached FOLLOWS notice and comment rule 0 Indiana ADR Rules 1997 Recognizes ADR methods 0 Settlement negotiation arbitration mediation conciliation facilitation minitrial summary jury trials private judges convening and or con ict assessment neutral evaluation fact nding multi door case allocation and negotiated rule making Governs these processes 0 Mediation arbitration minitrials summary jury trials and private judges also quali cations for mediators and discipline con dentiality procedures and discovery rules 0 Case Process Selection quotFitting the Forum to the Fussquot 0 Client goals Need quick decision Minimize costs Maintain relationship Minimizemaximize recovery Vindication clear your name Neutral assessmentOpinion Need for privacy Desire to set precedent Type of relief sought 0 lmpediments to settlement Poor communication Differing views of facts Differing views of law Need to express emotion Differing interests External pressures jackpot syndrome don t want to settle because you think you could get more Power imbalance Rule of Presumptive Mediation start w mediation overcomes most impediments O O Mediation excels over other ADR methods in overcoming most impediments to settlement Mediation should be the rst procedure tried absent compelling reasons to the contrary such as The other party refuses Concern over signing weakness to other side BATNA assessments are widely divergent Limited time or money Need rapid enforcement Uncooperative dishonest or irrational disputant Underlying interest is legal reform All other alternatives have been tried and failed Stages of Design Dispute System DSD comprehensive dispute resoloution system for resolving con icts in a business or organization 0 O O 0 Diagnosis interview employees compare system w design principles Design follow 6 principles of DSD Implementation develop necessary forms list of neutrals conduct training Exit Evaluation and Diffusion designer evaluates efforts designer exits DSD Principles 0 O 0 Consultation Before Feedback After prevention steps Noti cationannounce intended action quotfill out a formquotconsulatation step quotdiscuss initial problemquot Put the focus on interests interest based process Negotiation Mediation and or both Build in loopbacks to negotiation nonbinding process Advisory arbitrationmini trialsummary jury trialneutral expert opinioncooling off period no action taken Low cost back up processes binding 0 Arbitration in any form 0 Private judge legal dispute 0 Administrative law judge 0 Arrange procedures in a lowtohigh cost sequence lower cost than court Interests rightspower Prevention interest based nonbinding binding Goal is to resolve early and at the lowest level 0 Provide the necessary motivation skills and resources Staff training and stakeholder input Development of information for users of system Understanding culture of organization Concerns of DSD Model 0 Designer as expert mistake if you don t involve stakeholders in design of the process 0 Reliance on linear approach mistake if you focus on resolving individual disputes rather than the underlying con ict 0 Not enough emphasis on prevention mistake if focus is on resolving disputes rather than preventing them 0 Failure to consider organizational dynamics mistake if you do not address issues such as resistance to change incentive and reward structures 0 Public Disputes o A dispute involving an issue of public concern that involves one or more levels of government and one or more community groups Controversies affect members of the public beyond primary negotiators Ex a proposed project application of regulation public policy 0 Characteristics Multiple parties Varying levels of expertise Different forms of power Lack of continuing relationships Different decision making procedures Unequalaccountability No formal guidelines In uence of government regualtions Broad range of issues new issues emerge Importance of technical information Strongly held values Sprial of Unmanaged Con ict 0 Problem emerges 0 Sides form 0 Positions harden 0 Communication stops Resources are con rmed Con ict goes outside community 0 Perceptions become distorted people feel strongly so bad words come out Sense of crisis emerges 0 Outcomes vary Violence Lawsuit or court injunction Civil disobedience Remonstrance Public Participation options Authoritative Decision 0 Decision makers decide with minimal or no public input Public hearing 0 Hearings held for public comment on proposed action at public meeting late in decision making process Public Foruminvolvement o Opportunity for education dialogue and input from public regarding a proposed action Stakeholder Recommendations 0 Stakeholders directly negotiate a policy recommendation with a mediator which is then forwarded to decision makers for action Stakeholder Decision Making 0 Stakeholders directly negotiate an agreement w help of mediator which they have the authority to implement DFFERENCE quot HAS THE AUTHORITY TO MAKE A DECISION Story Boarding Technique for public input 0 Participants respond to a question posed by the facilitator by writing their response and then posting for all to see Responses are grouped by theme gives a snapshot of groups concerns Deliberative Dialogue how to avoid decide announce defend 0 Goal of forum is to increase understanding of complicated issues through dialogue rather than debate Participants weigh the bene ts and costs of choices Deliberative forum helps participants move toward shared judgements Participants are randomly separated into small groups for dicussions Stakeholder Recommendation 0 Consensusbased processes Any collaborative decision making process that uses a third party neutral to help parties solve their problem 00 O OO O o Consensus Process where a group makes a decision without voting that all members can support Role of Public Issue Mediator 0 To convene structure and control the mediation process To ensure all parties are at the table To gain parties commitment to participate in the process and ensure that they can speak for constituents To follow steps of interest based negotiation o Convening Tasks associated with implementing a consensus based process 0 Convener person who performs convening tasks Convening a Public Participation Process 0 3 tasks of convener Situation Assessment collaborative process feasible and likely to succeed Building the table who should participate Process design what will process look like Negotiated Rulemaking Regulatory Negotiation RegNeg 0 Stakeholder recommendation process where all parties affected by a a proposed rule are called to the bargaining table where a mediator helps them seek a consensus agreement on terms of proposed rule 0 quotusing public participation process to make regulationsquot Notice and Comment 0 Traditional process that federal agencies follow when developing and adopting a federal regulation 0 Steps Issue of public safety or concern emerges Appropriate agency becomes involved Agency staff research issue and conduct study Agency staff drafts proposal for a new regulation Notice is posted in Federal Registrar with draft of rule Notice invites parties to send in comments on draft Agency comments and redrafts Agency adopts or rejects proposed regulation Notice and comment Regulatory DIFFERENCE Who writes the rules Negotiated Rulemaking 0 Advantages Better info ow better rule Signi cant quality participation of the parties Process facilitates compliance and enforcement of rule O Disadvantages Costly More timeconsuming than traditional process ADR Issues understand what these mean 0 O O O Institutionalization of ADR making ADR part of the court system Mandating ADR ordering or coercing parties to go to ADR Regulation of mediationmediators efforts designed to protect and preserve the essence of the process ensure its effectiveness and ensure legal rights Mediator quali cations regulating mediator quali cations MultiDoor Courthouse O O 0 All dispute resoloution processes are available for all disputes led in court Particular types of cases are assigned to a particular processs by court screening clerks Goal is more effective and ef cient dispute resoloution Institutionalization O O O Incorporating ADR processes into the normal way that the justice system resolves disputes ADR no longer an alternative to court it is PART of court Pros of institutionalization Provides way to quot t forum to the fussquot process selection like ombuds More ef cient and effective system Legitimizes alternatives Courts can provide better control and standards Public funding can be used Cons of institutionalization Increased bureaucracy ADR no longer an alternative Should public courts support privatization disputeS Due process concerns if mandated Higher taxes if use public funds Problem of incorrect referrals inef cient Widens the net of social control brings in more cases ADR Issues Mandatory vs Voluntary 0 Pros of mandating ADR is the publics best interest 0 More effective process 0 Better court ef ciencyrelieve court congestion Helps to overcome lack of public awareness Consumer satisfaction due to winwin results 0 Cons of mandating ADR works because it is voluntary ADR works because it is voluntary Coercing people to do it may cost more o If ADR unsuccessful wasted time extra step amp money Dif culty in determining exceptions Cant be binding due process concerns ADR and Due Process 0 Due Process of law our rights and protections guaranteed by law Ex right to trial by jury or peers right to attorney right to cross examine your accuser o ADR and Due Process concern when ADR is mandated are due process rights violated o ADR lssues Regulation of Mediation 0 To preserve the essence of mediation lmpartiality and neutrality of mediator Client self determination Nonadversarial and con dential process 0 To ensure the effectiveness of mediation Enforceability of settlement Good faith participation Regulating mediation competence 0 To protect other legal rights Limitations on coercion in mediation informed consent Safety of participants and stakeholders Limits of con dentiality public interest other legal proceedings ADR lssues Mediator Quali cations 2approaches 0 Licensing A pro organization oversees a licensing procedure that involves Minimum educational quali cations Standardized licensing exam that you must pass 0 Ability to grant licence and take license away for cause Licensing of mediators Pros ensures quality of mediators Protexts consumers Gives legitimacy to mediation profession Enforces minimum standards Protects integrity of mediation process increases costs to consumers Creates barriers to entry in the eld Impossible to agree on appropriate standards 0 Creation of licensing organization presents problems 0 Would negatively impact community and school mediation programs who rely on volunteer mediators 0 Certi cation Involves certifying or documenting your training and experience in the subject area Certi cation criteria may be de ned by a state or organization Describes educational background degrees Trainings you have attended and completed Memberships in professional organizations Actual experience in the eld 0 Future of ADR 0 Lack of progress Public still not aware of ADR Absence of funding and licensing standards Lack of institutionalization lack of research on ef cacy 0 Signs of progress Adr clauses are used in contracts of all kinds Federal and state laws support or mandate ADR Many businesses and law rms use ADR There are state of ces of dispute resolution in about half of the states Every law school offers courses in ADR Community mediation centers have many volunteer mediators Peer mediation in schools are proliferating Quiz Questions 0 What is the primary purpose of nonbinding evaluation 0 To give an estimate of what would happen if the case were litigated What best describes early neutral evaluation 0 A neutral lawyer or retired judge meets with both parties early in the court case and gives a frank evaluation of the case Hoe does a summary jury trial differ from a minitrial o In a summary jury trial presentations are made to a regularjury What best describes a mini trial 0 An abbreviated triallike proceeding presided over by a neutral where cases are presented to those with settlement authority 0 What is considered a disadvantage of nonbinding evaluation o It promotes positional bargaining What best describes quotprocess selectionquot 0 Matching the most appropriate ADR process for a particular con ict Dispute System Designs DSD refers to o A comprehensive dispute resolution system for resolving con ict in an organization What does the quotrule of presumptive mediationquot mean 0 That mediation overcomes most impediments to settlement and should be tried rst The DSD model has how many basic principles 0 6 Diagnosis Design Implementation Exit Evaluation Diffusion DDIEED The loopback and lowcost backup steps are the same as o Nonbinding and binding hybrid processes The reading de nes public disputes as o Disputes between government agencies Which of the following about public disputes is true 0 Mediation is NOT usually feasible in public disputes Which of the following statements about public disputes is FALSE 0 The parties involved have strongly held values The quotSpiral of Unmanaged Con ictquot refers to o The order in which you should use ADR processes A characteristic of most public disputes is that they involve strongly held values 0 FALSE All of the following are reasons why mediation should be regulated except 0 To promote the quotadversarializationquot of mediation Which of the following is a main disadvantage of mandating mediation o It is coercive and violates the essence of mediation All of the following are reasons why mediation is underutilized except 0 It is too expensive for most parties Which of the following is not a coercive element courtconnected mediation o Allowing nonparties ex support ppl to attend the mediation Which of the following statements about mediator quali cations is true 0 There is no uniform mediator quali cation requirements


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