Business Law - Ch. 5 Alternative Dispute Resolution

What are the most popular ADR systems used by people and businesses attempting to resolve disputes?

Arbitration & Mediation

What are the features of the Federal Arbitration Act?

Arbitration agreements are considered enforceable, valid, and irrevocable by it Courts are rigorously to enforce arbitration agreements under it.

T/F A POSTdispute agreement is considered to be the wiser and ultimately more efficient approach to ADR than a PREdispute arbitration.

F

T/F The chances of a negotiated settlement through positional bargaining are minimal because positional bargaining focuses only on the underlying conflicts.

F

T/F Judicial review of voluntary/contract-based arbitration requires a DE NOVO review of the interpretation and application of the law by the arbitrators.

F

T/F Unlike alternatives, legitimacy involves having the parties state unsupported propositions in a negotiation.

F

T/F Submission is the process of concluding an arbitration proceeding.

F submission is the process of beginning an arbitration proceeding. it is the act of referring a matter to arbitration

In the context of a principled, interest-based negotiation ______________ involves the application of accepted standards to the topic negotiated.

Legitimacy

An additional ADR technique in which parties resolve all the matters of contention that they can and then agree to arbitrate the unresolved matters has become known as ______________.

Med-Arb

Least expensive in cost, time, and emotion

Negotiated settlement

Does subsection (d) under section 10 of the Federal Arbitration Act require the court to review the merits of EVERY construction of a contract?

No

In the context of mandatory arbitration statutes, when is an arbitration required?

Only in cases which a party has demanded a jury trial

What are some features of a Statutorily Mandated Arbitration?

cases are usually presented to a panel of 3 arbitrators are paid a per-diem fee

The private meeting between the parties and their attorneys & the mediator outside the presence of the other disputant is known as a(n) ___________.

caucus

What arises when parties already in dispute decide that arbitration is better than litigation?

Postdispute arbitration agreement

What are the primary reasons for the increase in the number of mediations as a form of ADR technique?

Reduction of the legal system governing the process the retention of control over when to settle and when to continue disputing by the disputing parties lesser cost as compared to arbitration and litigation

What are the 7 elements of principled interest-based negotiation?

Relationship Commitment Communication Alternatives Interests Legitimacy Options

In positional bargaining, the _____________ starts negotiating with the highest reasonable price

Seller

An arbitrator's award can be vacated if it can be proved by fraud, corruption, or other undue means

Subsection (a) under section 10 of the Federal Arbitration Act (FAA)

The use of corrupt or partial means that an arbitrator lacks the ability to consider evidence and to reach a fair conclusion

Subsection (b) under section 10 of the Federal Arbitration Act (FAA)

It covers arbitral misconduct which does not lend itself to a precise definition

Subsection (c) under section 10 of the Federal Arbitration Act (FAA)

It involves the question of whether the arbitrators exceeded their power, relates to the arbitrability of the underlying dispute.

Subsection (d) under section 10 of the Federal Arbitration Act (FAA)

T/F Fraudulent or arbitrary actions by an arbitrator can be corrected by judicial review.

T

T/F Mediators utilize the principles of interest-based negotiations

T

T/F The flexibility of mediation allows parties to utilize this process in conjunction with other dispute resolution systems

T

The ADR system is a technique that ____________.

helps ensure the productive relationship needed for successful business transactions

In most states, an arbitrator's award must be __________.

in writing

The judicial review of cases involving ________ issues controlled by the provisions of the Federal Arbitration Act.

interstate commerce

Arbitration is a form of an Alternative Dispute Resolution (ADR) system that _____________.

is used to avoid the expenses of litigation

What commonly appears in business contracts?

the Predispute arbitration clause

The act of referring a matter to arbitration is known as ________.

submission

A characteristic of an arbitrator's award is _________ .

that it is final on all issues submitted

Most people perceive conflicts as bad because ___________.

of the fact that they lead to disputes

Under what grounds can an arbitration award be set aside or vacated according to section 10 of the Federal Arbitration Act?

- if the award was procured by corruption, fraud, or other undue means - if the arbitrators were guilty of misconduct in refusing to hear evidence pertinent and material to the controversy - if a definite award upon a subject matter submitted was not made because the arbitrators imperfectly executed their powers

Why do businesses tend to settle disputes with customers instead of going through the process of litigation?

- individuals who have suits against large business corporations receive sympathy of the jury - it is not good business from a goodwill and public relations standpoint to sue a customer

Arbitration is preferred to litigation because _________.

- it is quicker and efficient - a judge cannot be as informed as an expert arbitrator

What factors must be taken into consideration during the selection process of an arbitrator?

- the number of arbitrators to be chosen - the expertise of the arbitrator

What actions constitute arbitral misconduct to justify vacating an arbitration award according to subsection (c) under section 10 of the Federal Arbitration Act?

-Participation in communications with a witness or a party without the consent of the other party -receipt of evidence as to a material fact without notifying a party -conducting deliberation in the absence of a member of an arbitration panel

What are the various aspects in the Judicial Review of Voluntary Arbitration Awards?

-an arbitrator's findings on questions of both law and fact are conclusive - it is more restricted than the appellate review of a trial court's decision - the fact the an arbitrator made erroneous rulings during the hearing is no ground for setting aside the award - an arbitration clause is liberally interpreted when the issue contested is in the scope of the clause

What is not required to be set forth by an arbitrator's award?

-conclusions of law -the reasons for the award -findings of fact

What are the characteristics of the process of arbitration?

-it helps ease congested court dockets - it submits many disputes to experts for solutions - it serves as a substitute for litigation - it provides a relatively quick resolution of disputes

What are some of the various aspects of the process of mediation?

-the conduct of the mediator is not subject to any judicial review - the process of mediation does not involve the legal issues found in the arbitration process

What are some advantages of the process of mediation?

-the disputing parties retain full control over the resolution of the controversy -the parties can decide the amount of time and effort that need to be put into the process

What are factors that determine how an arbitrator is selected?

-the statute that requires the arbitration - a provision in the agreement to arbitrate

Why do attorneys often use FOCUS GROUPS in significant cases?

-they provide insight into possible jury reaction to the evidence -they point up weakness in the case in question

Many courts argue that mandatory arbitration statutes that close the courts to the litigants are void against public policy because they _____________.

1. Deprive one of liberty of contract and property without due process of law 2. Result in the unconstitutional delegation of judicial or legislative power

List the order of basic procedures for a successful mediation.

1. Mediator explains the procedures to which the parties should agree 2. Parties make statements about the dispute 3. Exchange phase - mediators must attempt parties speak to one another 4. Possible solutions are brainstormed 5. Mediators must privately meet with the parties and their attorneys outside the presence of the other party

What are the basic forms of VOLUNTARY ARBITRATION?

1. a POSTDISPUTE arbitration agreement 2. a PREDISPUTE arbitration clause

What are the features of Alternative Dispute Resolution (ADR) systems?

ADR systems used by disputing parties may be part of a contractual relationship between those parties Disputing parties do not have to begin a lawsuit to use any form of ADR

In the context of a principled, interest-based negotiation _______________ is an outcome that is possible without the agreement of the other party in a negotiation.

An Alternative

The duties and rights of the parties to a submission are described and limited by their agreement in the absence of a(n) _________.

statute

In positional bargaining, the ____________ starts negotiating with the lowest reasonable price.

Buyer

Existing and potential conflicts can be handled productively because mediation typically focuses on ____________.

getting the parties to negotiate through an interest-based method

Most expensive in emotions, time, and cost

Trial and appeal

Maya requesting the court to try the dispute between her and a colleague Anew following a mandatory arbitration that was not in her favor illustrates ________________.

a DE NOVO review

When a court tries the issues that were resolved through arbitration anew, as if no arbitration occurred, is is known as _____________.

a de novo review

How are Voluntary Arbitration & Mandatory Arbitration similar?

an agreement to submit an issue to arbitration is considered IRREVOCABLE

What is a true statement about SUBMISSION?

an arbitrator is authorized by the parties to make a decision that binds these parties and resolves their dispute

Arbitration is frequently preferred over litigation because of the use of _________ to resolve a dispute.

an expert

The Federal Arbitration Act (FAA) covers _________.

any arbitration clause in a contract that involves interstate commerce

Most state statutes that authorize voluntary arbitration require the agreement to _________.

arbitrate to be in writing

An ADR system in which disputing parties agree to have a 3rd party decide the merits of the dispute is known as ____________.

arbitration

A court is willing to reverse the award granted in a voluntary arbitration proceeding only when the __________.

arbitrator's involvement in fraud or other inappropriate action can be proven

Focus groups help the disputing parties settle their disputes by prompting them to _________.

avoid going through either an arbitration or trial

The decision handed down by arbitrators or an arbitrator after and arbitration is known as a(n)

award

They exist whenever there are 2 or more points of view

conflicts

They arise when one party makes a claim that another party denies

disputes

Arbitrators are generally chosen by the ____________.

disputing parties

While reviewing the voluntary arbitration award, the courts ___________________.

do not interfere with an arbitrator's award by examining the merits of the controversy

A characteristic of the process of mediation is that it ________________.

does not involve an informal presentation of evidence

The mediation process is an Alternative Dispute Resolution (ADR) technique that ______.

does not need a judicial review

Attorneys frequently use _____________ in significant cases recognizing that a jury's function to determine the facts.

focus groups

Businesses settle many disputes even though they might possibly prevail in litigation because _____________________ & ____________________________.

juries often decide the size of the verdict against businesses due to their presumed ability to pay it can be cheaper to settle a dispute rather than to litigate it

Occurs when a court or statute requires parties to arbitrate

mandatory arbitration

Mediation is the process by which a 3rd person, called a ______________, attempts to assist disputing parties in resolving their differences.

mediator

The process used to COERCE or PERSUADE someone to do what one wants them to do is referred to as _______.

negotiation

What governs the failure or success of the use of ADR systems?

negotiation

Mediators are individuals who are _________.

not permitted to impose a binding solution on the parties

A Statutorily Mandated Arbitration is an ADR technique that ____________.

requires a higher level of judicial review of an award

An accurate statement about a STATUTORILY MANDATED ARBITRATION is that it __________.

requires substantially less time than litigation

An arbitrator's award is valid as long as it ______.

settles the entire contraversey

What constitutes a waiver of the right to seek a DE NOVO judicial review?

the failure of a party to be present at an arbitration either by counsel or in person

An aspect of negotiation is that ____________.

the parties are negotiating even as evidence of a conflict is exhibited

Submission by contract occurs if ______________.

the parties enter into an agreement to arbitrate an existing dispute

Occurs when the disputing parties agree to use this form of ADR

voluntary arbitration

During the caucuses, the mediator must _____________.

win the trust and confidence of each party to the dispute

The final step to a successful mediation is the ___________.

writing & signing of the agreement by the disputing parties