Term
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Definition
| ADR = Alternative Dispute resolution. |
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Term
Is Settlement a form of ADS?
Is a relase? |
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Definition
The whole process of settlement = ADR
A release is considered part of ADR |
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Term
| Is settling cost effective? |
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Definition
| Yes, settling is more cost effective than going to trial (trials = expensive). |
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Term
| Does settling remove any risk? |
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Definition
Yes, it removes the risk of trial/jury
(i.e. If you are the defendant and the jury brings back $2 million judgment when you could have settled for $500k). |
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Term
| Doest settling increase any risk? |
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Definition
Yes, it shifts the risk to the plaintiff.
(I.E. you might be settling for less than you could get a trial). |
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Term
| Why do a lot of claims go to ADR? |
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Definition
| A lot of claims go to ADR for costs. |
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Term
| At what point during ligiation can ADR occur? |
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Definition
| You can use ADR at any point during litigation. |
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Term
What kind of ADR occurs more frequently:
Arbitration or Mediation? |
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Definition
| Usually Mediation is more common. |
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Term
| What are the elements of Mediation |
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Definition
1) Voluntary
2) Non-binding
3) Court approved- federal may judge
4) Held in a court or other neutral venue |
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Term
| What does mediation give the parties a chance to do? |
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Definition
| Mediation gives parties the ability to vent, which may be what they need. |
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Term
What kind of role does a mediator play?
Why?
Who comes to the agreement during mediation? |
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Definition
Because mediation is non-binding, the mediator acts as more of a facilitator.
In mediation, the parties come to their own agreement. |
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Term
| What kind of role does an arbitrator play during arbitration? |
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Definition
| The arbitrator plays a role similar to a judge. |
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Term
Mediation vs. Arbitration
Which is binding? |
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Definition
Mediation is voluntary and non-binding.
Arbitration is typically involuntary and binding. |
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Term
| What generally makes arbitration occur? |
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Definition
| Genearlly arbitration occurs because of an arbitration Mandate (agreement) (in a contract) signed by parties mandating it. |
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Term
| What happens if you fail to abide by an arbitration mandate? |
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Definition
| The other party can petition to compel arbitration |
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Term
Mediation vs. Arbitration-
Which has discovery? |
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Definition
Discovery exists in arbitration but not in mediation.
BUT mediation may be part of civil litigation, in which case you would have conducted discovery before mediation takes place. |
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Term
| How extensive is arbitration discovery usually? |
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Definition
| Arbitration discovery is usually not very extensive. |
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Term
How is arbiration discovery conducted?
Can things be banned or limited in arbitration discovery?
What kinds of discovery are usually present in arbitration? |
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Definition
The arbitration agreement is a contract so the actual arbitration clause in the contract defines everything about civil procedure and the rules that it follows.
So the clause could banor limit the number of depositions.
However, there are usually document requests and interrogatories.
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Term
What is the mediator's role?
How important is this role? |
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Definition
The mediator is present to facilitate resolution.
Mediation is one of the most critical /very important component of mediation.
If they are bad, then the whole thing can be bad. |
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Term
What kind of agreements are usually signed in mediation (even if no agreement regarding the lawsuit is reached)?
Why are they usually signed? |
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Definition
Usually, non disclosure agreement are signed.
Non-disclosure agreements keeps information, like the numbers you were close to settling at, from being brought out in court. |
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Term
| Can a mediator be supoenaed? |
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Definition
| No, a mediator cannot be subpoenaed. |
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Term
Is there usually an opening statement in mediation?
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Definition
| Yes, there is usually an opening statement in mediation. |
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Term
Why is having an opening statement in mediation good?
Why is it bad?
What happens after you finish your opening statement? |
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Definition
Opening statements can bee good because it lets a mediator know where you stand.
However, it can piss the other party off even more.
After the opening statement, the mediator will ask for your last demand.
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Term
| What happens after you finish your opening statement in mediation? |
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Definition
| After you finish your opening statement, the mediator will ask you for your last demand. |
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Term
| May parties be caucaused (separated) during mediation? |
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Definition
| Yes, the mediator may ask for the parties to separate. |
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Term
What happens when parties are caucaused during mediation?
Why are parties caucaused? |
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Definition
The mediator will shuffle back and forth bewteen the parties.
This increases the likelihood that parties will open up.
This allows the mediator to get an idea of what is going on and the mediator can help faciliate information.
Separating also gives more power to the mediator and can tell each side where its weaknesses are without the worry that the other party will overhear.
It allows for the client and lawyer to disagree more easily. |
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Term
| Can a mediation statement be submitted? |
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Definition
| Yes, a mediation statement may be submitted to the mediator in some cases. |
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Term
What's a big no-no when submitting a mediation statement?
Why? |
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Definition
| Not following the mediator's instruction makes you seem sloppy to the mediator. |
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Term
| What is the purpose of mediation statements? |
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Definition
They help provide background to the mediator and flushes out the strengths and weakensses of the case.
Also, when you do mediation statements, the mediator is more prepared so you will get better results in the meidation. |
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Term
| How long does mediation take place for? |
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Definition
| Mediation usually does not take more than a day. |
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Term
| What options of resolution are allowed in mediation? |
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Definition
| All options of resolution are allowed. |
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Term
| Should the details of a relase be decided during mediation? |
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Definition
| It is better to let the details of a release be decided out of medation. |
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Term
Can mediation precede Arbitration?
Can it be a part of civil litgation |
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Definition
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MEDIATION MAY PRECEDE ARBITRATION OR BE A PART OF COURT LITIGATION
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Term
Can mediation be a part of an admnistrative proceeding?
Examples? |
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Definition
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MEDIATION MAY ALSO BE A PART OF AN
ADMINISTRATIVE PROCEEDING
I.E. EEOC OR OHR
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Term
| Mediation's Advantages over Arbitration |
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Definition
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1) IT IS VOLUNTARY
2) NON-BINDING
3) OPEN TO MODIFY RULES
4) SUCCESS VERY DEPENDENT ON MEDIATOR
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Term
| What makes a good mediator? |
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Definition
| They need to understand the legal implications of the case but they also need to understand people and their psychology in order to manipulate them so that an agreement can be achieved. |
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Term
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Definition
| Anyone can be a mediator. |
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Term
| Is arbitration voluntary? |
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Definition
| No arbitration is mandatory and binding. |
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Term
| Where is arbitration normally defined? |
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Definition
Arbitration is normally defined in a contract.
A treaty can also have arbitration. |
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Term
| What is arbitration's popularity overseas? |
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Definition
| Arbitration is a big thing internationally |
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Term
| How many arbitrators a required for arbitration? |
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Definition
| An arbitration agreement may require one or more arbitrators depending on the amount in controversy. |
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Term
| what is one very common kind of contract that has an arbitration clause? |
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Definition
| Credit Card agreements almost always have an arbitration clause. |
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Term
| What does an arbitration clause of a contract do? |
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Definition
| It forces a party to submit a complaint to arbitration rather than submit it to a court. |
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Term
How are some rules of arbitration decided?
Example? |
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Definition
Some Rules are defined by the panel you choose
(i.e. AAA abritrations- a predefined set of arbitration rules). |
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Term
| When do you choose the arbitrator? |
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Definition
| You choose the arbitrator before discovery. |
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Term
| What is a reason to exclude a potential arbitrator? |
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Definition
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Term
| When does discovery in arbitration begin? |
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Definition
| After a single arbitrator or panel is chosed, then discovery begins. |
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Term
| Types of discovery in arbitration |
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Definition
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Most arb agreements allow for document disclosure and interrogatories
Depositions are usually not permissible
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Term
| Who usually resolves discovery disputes in arbitration? |
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Definition
| Discovery disputes in arbitration are usually resolved by the arbitrator. |
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Term
| Is Arbitration subject to the rule of Evidence? |
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Definition
| No, arbitration is not subject to the rules of evidence. |
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Term
| How does an arbitration hearing proceed? |
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Definition
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1) BOTH SIDES OPEN WITH STATMENTS
2) PROCEEDS SIMILAR TO COURT CASE WITH LESS FORMALITY NO RULES OF EVIDENCE
3) ARBITRATORS MAY ASK QUESTIONS (arbitrators are usually experts so they may ask questions to clarify)
4) PETITIONER (PLAINTIFF) BRINGS CASE PRESENTS PROOF OF CLAIM
5) CROSS-EXAM ALLOWED OF WITNESSES
6) DEFENSE PRESENTS CASE
7) SIDES CONCLUDE
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Term
| How does an arbitration conclude? |
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Definition
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1) ARBITRATORS DRAFT A DECISION AND PROVIDE IN WRITTEN FORMAT TO PARTIES
2) Parties must abide by decision – binding
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Term
| Does an arbitration decision have to follow the law? |
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Definition
| No, an arbiration decision does not have to follow the law. |
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Term
May an arbitration decision be appealled to court?
If so, how succsesful are these appeals?
Do courts encourage or discourage arbitration? |
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Definition
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1) DECISION MAY BE APPEALED IN COURT BUT LIMITED STANDARD OF REVIEW
2) GENERALLY, Standard of Review is “ARBITRARY AND CAPRICIOUS” (very difficult to prove)
3) COURTS ARE RELUCTANT TO OVERTURN UNLESS ARBITRATOR HAD CONFLICT OR FRAUD IN DECISION
4) COURTS ENCOURAGE ARBITRATION – SEE FEDERAL ARBITRATION ACT 9 USC § 1
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Term
How does the federal mandate treat arbitration clauses?
What happens to contradictory state lawas? |
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Definition
1) FEDERAL ARBITRATION ACT MANDATES UPHOLDING ARBITRATION CLAUSES IN MOST MATTERS THAT MAY COME BEFORE A COURT – see later slide Section 9
2) IN MANY CASES IT WILL PREEMPT STATE LAW WHICH CONTRADICT IT
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Term
Are arbitration clauses typically enforced by the courts?
How can you get out of arbitration clauses? |
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Definition
1) Generally, ARIBTRATION CLAUSES WILL BE ENFORCED BY THE COURTS
›2) However, you can get out of an arbitration clause by saying that the other side, or one side of the party lacked capacity, but you usually have to claim that you were fradulently induced. |
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Term
Who can decide the arbitrability of an issue?
Can they also decide the enforceability of an arbitration clause? |
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Definition
The arbitrator
Yes, the arbitrator can also decide the enforceability of an arbitration claus. |
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Term
Why was Arbitration created?
Has it achieved these goals? |
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Definition
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1) Initially ADR created to
a. Increase speed of resolution
b. Decrease Cost to Litigants
2) Unfortunately in US not happening
3) Many arbitrations take years to complete and cost more than litigation
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Term
| Plaintiff's complaint regarding arbitration? |
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Definition
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Plaintiffs (claimants) complain that since arbitrators are paid they are more inclined to side with defendants to improve their chances of being picked by them in the future
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Term
| Does Arbitration keep issues confidnential |
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Definition
| Yes, arbitration still keeps issues confidential |
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Term
| Arbitrability- Definitionss (2) |
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Definition
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1) Whether specific classes of disputes are barred from arbitration because of national legislation or judicial authority. Courts often refer to “public policy” as the basis of the bar.
2) Also means the preliminary question of whether an
arbitral tribunal has the authority to decide, as an
initial matter, that a given dispute should be submitted
to arbitration for a determination of whether the
arbitral tribunal has jurisdiction over the dispute. |
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