ADR

Competive approach model to negotiation: What is its primary concern? Purpose? How do you compete effectively?

1. A negotiator who is primarily concerned with "winning" the negotiation for the client and for him or herself. 2. To compete effectively, you must make a strong case for yourself, you must be persuasive and firm, and you must often appear to be taking charge or controlling the conversation. The power style is to clarify of your position and often the persuasiveness the knowledge that goes along with being convinced that you are correct. 3. Competitive bargaining has the purpose of maximizing the competitive bargainer's gain over the gain of those with whom he negotiates.

What are the advantages and disadvantages of the accommodative approach?

1. Advantages: If you give in, the other side will probably appreciate your bowing to his or her wishes, and that could improve your relationship. It also eliminates the conflict (at least in the short term) and can be efficient and easy to implement. You just say yes! 2. Disadvantages: You do not get what you want because you can be taken advantage of. Other people might be frustrated with your lack of input and it can make it increasingly difficult for you to stand up for yourself. It also denies you and your counterpart the opportunity to work through conflict in a productive manner.

What are the advantages and disadvantages of the avoidant approach?

1. Advantages: The lack of entanglement in issues that are trivial to you or relationships that are not sufficiently significant. Most crucially, avoiding is necessary component of time management (not ready to negotiate) and sanity maintenance. 2. Disadvantages: You can explode from frustration. You could be frozen out from discussions on some matters, and others could feel negatively about your avoidance.

Arbitrator's conflict of interest

1. Arbitrators are not automatically disqualified by a business relationship with he parties before them if both parties are informed of the relationship in advance, or if they have unaware of the facts but the relationship is trivial. 2. See also Caperton v. A.T Massey Coal Co., the Supreme Court held that the Due Process Clause recuses a judge who had received a very substantial campaign contribution form one of the parties to recuse himself from the case.

Confidentiality in mediation PT 1

1. Confidentiality is deemed necessary in relationships where parties might not otherwise share info & where furthering the particular relationship, activity, or service is important to society. Confidentiality also helps protect mediators and mediation programs from being bombarded by subpoenas. Fairness considerations also argue for confidentiality, since a more sophisticated party might use mediation to obtain info and then use the harm or take advantage of the more forthcoming party.

Defenders of mandatory arbitration PT2

1. Consumers and employees accept arbitration voluntarily, even if it is contained in form contracts; most contracts in our complex economy are form contracts, and that form contracts are routinely enforced by courts. 2. Pointing to the high cost and slow speed of our litigation systems, mandatory arbitration assert that binding arbitration is beneficial not only for the companies that impose it, but also for individuals & society as a whole. 3. When companies include arbitration in form contracts they help consumers & employees b/cuz it's cheaper quicker, and more accessible.

Critics of mandatory arbitration PT 1

1. Critics of mandatory or cram down arbitration asserts that such clauses are unfair to individuals and bad as a matter of public policy. 2. Companies use arbitration not merely to changed he procedural venue of claims, but also, for example by proscribing class actions, to prevent consumers or employee from bringing claims at all. 3. Arbitration clauses are often drafted in an overreaching manner that is stacked against the "little guy" consumer and employees.

Discuss the custom-tailored outcomes: PT 1

1. Developed to maximize benefits for all sides; 2. Can create more value for parties than the adjudicative forums; 3. Agreements can be finely calibrated to balance out equities arising from past (mis)conduct and thus be reparative from a justice perspective. 4. At the same time, the outcome must be better than the litigation, since either party can "veto" the agreement (of course , this assumes that the parties are adequately informed and not strong-armed into settlement): Such "quality" solutions will likely be perceived as fairer by the parties.

What kind of disputants would want to go through arbitration? (3)

1. Disputants who are primarily looking for a speedy, low-cost dispute resolution technique might meet these goals by making their arbitration informal and with virtually no opportunity for appeal. 2. Disputants who want a decision maker with a particular background or expertise can write those requirements into the arbitration agreement. 3. If disputants want a private, non-published decision, they can call for that in their agreement, but if the disputants prefer a public process that results in a reasoned written award, that can be also be arranged.

Why is assertiveness an important skill?

1. Effective negotiators know how to ask for what they want, how to frame their arguments persuasively, how to support their arguments, and how to remain calm and confident through the negotiation. 2. Assertiveness is firmly and pleasantly asking for what you want; it is holding on to your goals while making tradeoffs graciously; it is explaining why what you want is fair.

The three goals of inteviewing

1. Effective use of introductory interaction with the new (or old) client and the application of "ice-breaking" techniques should help to reduce client anxiety and allow the client to feel more comfortable in the professional setting. 2. Your goal during the problem identification stage of the initial interview is to obtain the clients' perception of the problem without imposing your own structure on the client. To achieve this goal, begin with an open-ended question or statement that calls for a narrative.

What is the difference between arbitration and mediation PT 2

1. Engaging fully in mediation might involve acknowledging the other side's perspective, suggesting compromise options, disclosing your own priorities. 2. Arbitration confidentiality is not needed in order to provide this incentive, b/bcus arbitration is an adversarial proceeding. 3. In adversarial proceedings, we imagine that both parties present the best evidence make the best arguments they can. There is no reason for them to hold back on these arguments, even in the absence of formal confidentiality protections, b/cus they want to win the case.

When should clients use agents?

1. Expertise 2. Detachment 3. Tactical Flexibility

Explain the difference between Arbitration, mediation and litigation

1. Final decision maker 2. How it starts 3. Role of the parties 4. Role of the lawyers 5. Role of the third party 5. Role of the courts 6. Outcome

What are the three steps on interviewing and counseling?

1. First, the attorneys uses an interview to obtain information from the client. 2. Second, the attorney uses the counseling portion of initial session to provide information to the client. 3. Third, throughout the session the attorney is concerned with establishing rapport between attorney and client. Rapport has a two-fold significance: It connotes a certain personal regard between you and the client; Rapport means mutual trust.

Discuss the custom-tailored outcomes: PT 2

1. From a societal perspective, community value flows from maximizing individual benefit and from reducing the disaffection costs of conflict, such as poor health, social friction, and aggregation. 2. At the same time, the outcome must be better than the litigation, since either party can "veto" the agreement: Such "quality" solutions will likely be perceived as fairer by the parties. 3. From a societal perspective, community value flows from maximizing individual benefit and from reducing the disaffection costs of conflict, such as poor health, social friction, and aggregation.

Sources of confidentiality through contracts

1. In agreement to mediate, parties can, and frequently do, agree not to disclose information conveyed in the mediation and not to subpoena the mediator to testify about what happened. 2. However, courts may refuse to enforce a confidentiality agreement because suppression of evidence needed in litigation is contrary to public policy. Hence, legal protection for such agreements is not certain. Even if the confidentiality agreement is upheld for those signing it, third parties may have access to the information through discovery and subsequent use in trial.

Arbitrator's duty of candor

1. In most jurisdiction, attorneys owe the same duty of candor to an arbitrators in a binding arbitration as they would to a judge. Model Rule 1.0(m) now includes binding arbitration in the definition of tribunal. So the Model Rules 3.3's requirement that attorneys be truthful with respect to tribunals apply to attorney's conduct as representatives in binding arbitration.

Explain how negotiation can be cyclical process

1. In negotiation, there is a cyclical process comprising the repetitive exchange of information between the parties, its assessment, and the resulting adjustments of expectations and preferences. 2. There is also a developmental process involved in the movement from the initiation of the dispute to its conclusion - some outcome - and its implementation.

Explain the 6 attributes of negotiation PT 2

1. Informal: There are no prescribed rules in negotiation. The parties are free to adopt whatever rules they choose, if any. Generally, they will agree on issues such as the subject matter, timing and location of negotiations. Further matters such as confidentiality, the number of negotiating sessions the parties commit to, and which documents may be used, can also be addressed. 2. Confidential: The parties have the option of negotiating publicly or privately. 3. Flexible: The scope of a negotiation depends on the choice of the parties. The parties can determine not only the topic or the topics that will be the subject of the negotiations, but also whether they will adopt a positional based bargaining approach or an interest-based approach.

What are the disadvantages of mediation?

1. It does not always result in a settlement agreement. 2. Mediation lacks the procedural and consitutional protections guarantted by the federal and state courts. 3. Legal precedent cannot be set in mediation. 4. Mediation has no formal discovery process.

What are the advantages of a client-centered approach?

1. It encourages clients to participate actively in the description and resolution of their problems. 2. Active client participation enhances the likelihood of producing satisfactory resolution. It does so by: Embracing both the legal and nonlegal dimensions of a client's problem; Employing the combined expertise of lawyer and client in identifying and evaluating potential solutions; and Encouraging decisions to be made by clients, who are generally better able than lawyers to assess whether solutions are likely to be satisfactory.

What is the client-centered approach?

1. It is important to uncover the legal and nonlegal concerns of your client. This approach includes understanding the client's problem from the client's point of view and shaping legal advice around the client's values. 2. It all starts with effective counseling and consideration the clients: economic, social, psychological, moral, political, and religious consequences.

Why is it important to have attorneys in ADR PT 1

1. Knowledge and Strategy regarding processes: Lawyers can be very useful in helping disputants decide which process might be the best option. 2. Gathering and presenting factual information: No matter how informal the process, disputants typically need to explain such matters as what happened, what relief they are seeing or seeking to avoid proving, and why they believe they are in the right and someone is in the wrong.

Outcomes of mediation PT 1

1. Many proponents of mediation emphasize its ability to engage participants in a forward-looking exercise of developing options and optimal outcomes. 2. Mediators try to get parties out of an adversarial contest and into the exercise of creating a better future. 3. Agreements to communicate in certain way, to write letters of reference, to refrain from contact or conduct can be valuable. 4. Apologies can allow parties to "let go" and move on with their believes, such results are not generally part of the remedies available to an arbitrator or judge.

Advantages of settlements in mediation

1. Mediation allows for flexible solutions and settlements. 2. Settlements reached in mediation are more agreeable to both parties than court judgements. Mediators have success in settling cases in a satisfactory and efficient manner is a key reason that many lawyers advise clients to mediate, even though there is always the chance that mediation will not resolve the situation. Compared to the risky undertaking of adjudication, mediation, when successful, offers parties the possibility of an acceptable conclusion, one that they have crafted and endorsed themselves.

Narrow and broad approaches to Mediation

1. Mediators w/ a narrow focus assume that the parties have come to them for help in solving the technical problem. Parties have defined this problem in advance through the positions they have asserted in negotiations or pleadings. 2. Mediators with a broad orientation assumes that the parties can benefit if the mediation goes beyond the narrow issues that narrowly define legal disputes. Important interests often lie beneath the position that the participants assert. The mediator should help the participants understand and fulfill those interests - at least if they wish to do so.

What are the underlying principles of problem solving

1. Meeting Varied and Complementary Needs 2. The principles underlying such an approach is that unearthing a greater number of the actual needs of the parties will create more possible solutions because not all needs will be mutually exclusive. 3. By examining the parties underlying preferences, the parties might find additional solutions that could make both parties happy at less cost.

Discuss the models of negotiation table

1. Model 2. Summary 3. Strategies 4. Source of prove 5. Advantages 6. Disadvantages

What is negotiation and explain its two components

1. Negotiation is a process for resolving conflict and solving problems. It simply involves direct communication between the two disputing parties and their representatives with the aim of reaching a settlement. 2. Negotiation has both conceptual and behavioral components: a science of substantive ideas for solutions and outcomes and an art which is the behavioral and skills aspects of approaching others to jointly accomplish some goal.

Step four of effective advocacy in mediation: PT 2

1. One acceptable method of satisfying both needs is to simply allow the client an opportunity to participate in the opening presentations to satisfy whatever venting needs exist. 2. The best overall theme and tone of opening presentation in mediation would probably be a matter of fact description of the case to be presented at trial - firmly and unequivocal. There should be minimal argument - let the facts do the arguing.

To understand a conflict in which we are a party, we will want to observe it from at least three point of view:

1. Our point of view: Are we in control? What are goals or interests? 2. The other parties' point of view; 3. From a neutral third party's point of view

Outcomes of mediation PT 2

1. Party-crafted and voluntary agreements that are responsive to the interests and values parties articulate are more durable than judgments that the "losing" party may find unfair and attempt to avoid by suing an appeals process or simply making it difficult to collect the judgment. 2. Parties in mediation can also create procedures for resolving whatever new conflicts they might have and for resolving issues that can occur when interpretations differ on what agreements actually mean.

What are critics of the transformative model saying?

1. People find most significant about conflict is that it leads and even forces them to behave toward themselves and others in ways that they find uncomfortable and even repellent. 2. It alienates them from their sense of their own strength and their sense of connection to others, thereby disrupting and undermining the interaction between them as human beings.

Advantage of having a mediator solve your problems

1. Promote party empowerment and self-determination by carving our space and time for each side to tell their story and be heard in a meaningful way. this feature alone can be important clients. 2. Mediators seek party involvement in crafting proposals that are responsive to each side's needs. 3. They can help temper unrealistic positions, unwarranted assumptions, and demonization of another party.

The four interrelated core principles: understanding-based model

1. Rely heavily on the power of understanding rather than the power of coercion or persuasion to drive the process. 2. The primary responsibility for whether and how the dispute is resolved needs to be with the parties. 3. The parties are best served by working together and making decisions together. 4. Conflicts are best resolved by uncovering what lies under the level at which the parties experience the problem.

Why is it important to attorneys in ADR? PT 2

1. Researching and presenting legal arguments: The strength and weakness of legal arguments is highly relevant to determine whether a disputant out to settle on particular terms. Thus, lawyers can help a great deal in researching and presenting legal arguments. 2. Empowering clients: Lawyers are poised to provide emotional support to their clients to tell their stories. 3. Drafting agreements: If an agreement is reached, the attorney can help the client by drafting the actual agreement to ensure the terms of the contract are clear, fair and enforceable.

Important 5 ethical rules to remember in ADR

1. Rule 1.2 2. Rule 1.4 3. Rule 1.6 4. Rule 4.1 5. Rule 8.4

What are the three components of assertiveness?

1. Set your goals 2. Be specif 3. Set your limits

What is the collaborative approach (Problem-solving, integrative, or principal bargaining)

1. Some call this the "joint gain" model of negotiation as the negotiator is interested in doing well for herself and her client and in working with the other side to meet that party's interests. 2. The problem-solving model seeks effectively accomplish their goals by focusing on the parties' actual objectives and creatively attempting to satisfy the needs of both parties, rather than by focusing exclusively on the assumed objectives of maximizing individual gain.

Explain the expertise skill of an agent

1. Substantive knowledge: divorce lawyers, real estate agents or tax lawyers have a narrow domain of expertise that will benefit the client. 2. Process expertise: having a skill at the negotiation process, thereby enhancing the prospects of a favorable agreement. 3. Special influence: having a pull or some type of special connection.

What are three ways you can make your presentation more persuasive?

1. Tell a coherent story about what your client desires; 2. Use metaphors and labeling; 3. Use specifics and detail

What is the difference between arbitration and mediation PT 1

1. The authority of the third party. 2. An arbitrator can issue a decision without any opinion explaining the reasoning underlying the decision, and the hearing itself is rarely open to public access. 3. Arbitration does not enjoy the same kind of confidentiality as mediation. The reason for this distinction rests largely in the differences between mediation and arbitration. 4. Confidentiality in mediation is justified because we want to provide an incentive for participants to engage fully.

Advantages of speed in mediation

1. The benefits of speedy closure to conflict are financial, practical, and psychological. 2. A mediation can be scheduled quickly, and sessions can take as little as a few hours or one to two days to complete, preserving time, profit, and ongoing relationships.

Step four of effective advocacy in mediation: PT 1

1. The client must feel his or her story has been told. The client must be given the opportunity to vent. In all occasions, the client must feel that the merits of his or her position in the debate have been fairly presented and understood. 2. There is a need for the opening presentations to clearly and effectively communicate the "other side of the story" to the opposition. An overly aggressive tone or demeanor to an opening presentation in a mediation, however, can serve to "turn off" the opposition and the critical task of expanding their understanding of the dispute is not achieved.

Describe the 6 roles of a mediator

1. The mediator can assist parties to communicate effectively; 2. The mediator can identify and narrow issues; 3. The mediator can crystalize each sides' underlying interests and concerns; 4. The mediator can carry messages between the parties; 5. The mediator can explore bases for agreement and the consequences of not settling; 6. The mediator can develop a cooperative problem-solving approach.

What is norm-educating?

1. The norm-educating mediator insures that party decision making is informed by relevant legal and social norms -either by educating parties himself or making sure that each party's lawyer does that. 2. Such a mediator will dissect weaknesses in each disputant's case, using legal or other norms. 3. A norm-educating mediator would allow parties to made decisions contrary to prevailing norms (once they were properly educated), a norm-advocating mediator would not.

What is the problem-solving approach?

1. The problem-solving approach seeks to accomplish their goals by focusing on the parties' actual objectives and creatively attempting to satisfy the needs of both parties, rather than by focusing exclusively on the assumed objectives of maximizing individual gain.

The "its a game" Poker school

1. The rules are defined by the law. . . . Conduct within the rules is ethical. Conduct outside the rules is unethical. 2. The goal is to get the other side to agree to terms that are as close as possible to your last proposal. However, deception is viewed as necessary part of negotiation.

Creativity and flexibilty and its value

1. They are flexible in terms of what goes into a settlement because they recognize that some opportunities might create new value and get them more than what they thought was available. 2. The value of creative thinking also applies to effective negotiation where the ability to "think outside the box" is valuable. Without this particular skill - often overlooked in legal education - problem-solving or integrative solutions to negotiation become difficult. 3. Often the difference between simple compromise - splitting the orange - and collaborative - peel and fruit - is being creative and flexible.

Explain the accommodative approach (Soft bargaining or cooperative)

1. This approach focuses on relationships and on working with the other side. The power behind this style is that if you greatest concern is making the other side happy, accommodating accomplishes that quickly and completely - as long as the other side approves. 2. A negotiator may be generous or self-sacrificing for the sake of their relationship which makes a cooperative negotiator is likely to be more pleasant and friendly.

The "what goes around comes around" pragmatist school

1. This school of thought prefers not to use misleading statements and overt lies if there is a serviceable, practical alternative. 2. Uniquely, the Pragmatist School displays concern for the potential negative effects of deceptive conduct on present and future relationships. 3. Thus lying and other questionable tacks are bad not so much because they are "wrong" as because they cost the under more in the long run than they gain the short run.

The mediator's primary goal under the transformative approach

1. To support empowerment shifts, by supporting - but never replacing - each party's deliberation and decision making, at every point in the session where choices arise (regarding either process or outcome) 2. To support recognition shifts, by encouraging and supporting - but never forcing - each party's freely chosen efforts to achieve new understandings of the other's perspective.

Explain the 6 attributes of negotiation PT 1

1. Voluntary: No party is forced to participate in a negotiation. The parties are free to accept or reject the outcome of negotiations and can withdraw at any point during the process. Parties may participate directly in the negotiations or they may choose to be represented by someone else, such as a family member, friend, a lawyer or other professional. 2. Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They can range from two individuals seeking to agree on the sale of a house to negotiations involving diplomats from dozens of States (e.g., World Trade Organization (WTO)). 3. Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation is reached by the parties together without recourse to a third-party neutral.

Describe 4 instances when a negotiator has a duty to voluntarily diclose matters that may hurt her bargaining position PT 1

1. When the negotiator makes a partial disclosure that is or becomes misleading in light of all the facts: If you say your company is profitable, you may be under a duty to disclose whether you used questionable accounting techniques to arrive at that statement. 2. When the parties stand in a fiduciary relationship to each other: In negotiations between trustees and beneficiaries, partners in a partnership, shareholders in a small corporation, or members of a family business, parties may have a duty of compete candor and cannot rely on the "be silent and be safe" approach.

Describe 4 instances when a negotiator has a duty to voluntarily diclose matters that may hurt her bargaining position PT 2

1. When the non-disclosing party has vital information about the transaction not accessible to the other side: An employer should reveal to an employee if he/she has plans to shut down the project that he/she has hired the employee for. In general, sellers have a greater duty to disclose hidden defects about their property than buyers do. 2. When special codified disclosure duties: Legislatures sometimes impose special disclosure duties for particular kinds of transaction. In the U.S, many states now require home sellers to disclose all known problems with their houses.

The importance of empathy

1. When you are negotiating, you are trying to change someone's mind. Empathy helps you figure out what the other person is thinking and that insight into his or her mind can greatly improve your chances of changing it. 2. To accomplish your goal, you want to understand where the other person you're negotiating with is coming from - and at the same time still recognize the importance of your own interests.

Explain the setting your goal component

1. When you set goals, think boldly and optimistically about what you would like to see happen. 2. Research has repeatedly shown that people who have higher aspirations in negotiations perform better and get more than people who have modest or "I'll do my best" goals provided they really believe in their targets. 3. Some people set modest goals to protect their self-esteem; we may not have enough information about the negotiation about the negotiation to see the full potential for gain; or we may lack desire.

The "Do the right thing even if it hurts" idealist school

1. bargaining is an aspect of social life, not a special activity with its own unique set of rules. The same ethics that apply in the home should carry over directly into the realm of negotiation. For example, it if wrong to life in special situation, is also okay to lie in negotiations when those special conditions apply.

The 9 C's of dispute resolution and their current importance and controversy (3)

1.Choice/consent/coercion (Is it ethically improper to impose arbitration on persons who have not really chosen it?); 2.Courts or contracts (Is it ethical for courts to mandate arbitration and if so, what ethical rules apply?); 3.Conflict of interest (Do arbitrators face improper conflicts of interest to the extent they are trying to please repeat-player clients or serve as party-appointed arbitrator advocates?);

The 9 C's of dispute resolution and their current importance and controversy (3)

4.Competence and credentialing (Should competency and credentials be governed by an ethical code?); 5.Corporate-organizational liability (To what extent should arbitration providers be governed by ethical rules?).6.Communication and counseling (Should lawyers be ethically required to counsel their clients about arbitration or other forms of ADR?);

The 9 C's of dispute resolution and their current importance and controversy (3)

7.Costs and fees (Do the costs and fees associated with arbitration raise ethical concern?); 8.Complaints and grievance systems (From an ethical standpoint, should parties be provided with a forum in which they complain about alleged arbitration improprieties?); and 9.Conflicts of laws (Whether and, if so, how should the many sometimes conflicting statutes, rules, and codes of arbitration ethics be reconciled).

Explain the avoidant approach

A negotiator who tries to avoid conflict and it reflects indifference to the concerns of either party. An instance of withdrawal, isolation, indifference, ignorance, or reliance upon fate. This person either does not raise the conflict at all or tries to avoid discussing it if approached; if forced to deal with the conflict, an avoider tries to resolve it as quickly as possible.

Explain the compromising approach (sharing approach)

A strategy characterized by finding middle ground and using some empathy and creativity. Intermediate between domination (competitive) and appeasement (accommodative) and splitting-the-style of negotiation (party gives up something and keeps something).

What is mediation?

A voluntary and informal process in which the disputing parties select a neutral third-party to assist them in reaching a negotiated settlement. Unlike a judge or arbitrator, a mediator has no power to impose a solution on the parties. Rather, mediators assist parties in shaping solutions to meet their interests and objectives.

What are the advantages and disadvantages of the competitive approach?

Advantages: If you come on strong, the other side might agree with you right of the bat and you might get your way with relatively little effort. It can be efficient because if you get your way within minutes, you don't waste must time. Disadvantages: If you approach a battle looking for a fight and convinced that you will win, the other side might not agree and might fight back even harder than he or she would if you took a softer approach, which can damage your relationship or lead to stalemate - or both.

What are the advantages and disadvantages of the collaborative approach?

Advantages: Working together will build trust in the relationship; it increases the chance that the relationship will be improved and that the solution will be carried out. In addition, any solution the group decides is likely to be based on sound, relevant information and to be more durable than one that was decided unilaterally. Disadvantages: It can be exhausting as it takes time and motivation, it can distract those involved from other pressing problems, and can bring on "analysis paralysis," a state in which too many people spend too much analyzing and not enough time to decide.

What are the advantages and disadvantages of the comprising approach

Advantages: it can be relatively fast, it can move things forward and give parties a way out of a stalemate, it is easy to understand and implement, and it appears reasonable. Disadvantages: It can feel like horse-trading. If we move to agreement and to creating a solution too quickly, it can be at the expense of better and more well-thought-out answers, and we may miss a chance to hear everyone's point of view. Compromising can also lead to patching up the symptoms of conflict without dealing with the cases, which can mean that the conflict will flare again.

How the problem solving approach align with facilitative-broad mediation?

Aligns with facilitative-broad mediation and seeks to assist parties to understand their interests, the issues, and each other more fully and to generate options and ultimately solutions or agreements.

What is arbitration?

Arbitration is a process in which a third party who is not acting as a judge renders a decision in a dispute. At the most fundamental level, arbitrators - like judges - render decisions in cases brought before them. However, unlike litigation, in most cases all other aspects of arbitration are subject to the contractual arrangements between the disputants.

Confidentiality in mediation PT 2

Arguably, parties would not be candid with mediation with confidentiality protections, confidentiality is thought by many to critical to mediation. There is always tension between the public's right to obtain the "truth" or "every person's testimony" in adjudicative proceedings and the public good furthered by confidentiality.

What is community-enabling mediation?

Assisted by the mediator, individuals make choices in right of the values of a variety of communities to which they might be long and they determine what weight, if any, to give to the norms at a given community. 1. A mediator has responsibility to discuss the norms of relevant community. 2. This style allows individuals to make informed decisions about how to organize their lives and intimate relationships by exposing them to competing norms, including competing communities.

Explain the detachment and tactical flexibility skills of an agent

Detachment: principals should use agents to the actual negotiation because the principals themselves may be too emotionally entangled in the subject of dispute. Tactical flexibility: agents can be used strategically to get more from the other side or just to get a more favorable result for a client by perhaps p,laying good cop/bad cop.

The mediator's role: evaluative

Evaluative Mediator would propose settlement options and try to persuade parties to make concessions. 1. The evaluation mediator assumes that the participants want and need the mediator to provide some direction as to the appropriate grounds for settlement - based on law, industry practice or technology. 2. She also assumes that the mediator is qualified to give such direction by virtue of her experience, training and objectivity.

The mediator's role: facilitative

Facilitative Mediator encourages parties to generate their own settlement options and will not suggest settlement terms. 1. The facilitative mediator assumes the parties are intelligent, able to work with their counterparts, and capable of understanding their situation better than either their lawyers or the mediator. 2. So the parties may develop better solutions than any that the mediator might create. Thus, the facilitative mediator assumes that his principal mission is to enhance and clarify communications between the parties in order to help them decide what to do.

Disadvantages of arbitration PT 2

From a public standpoint, the desirability of arbitration often turns not only on the type of arbitration, but also on the particular disputes that are being arbitrated. Even when private parties find arbitration desirable, the public may prefer to have certain disputes resolved in a public forum such as litigation. Arbitration is sometimes criticized because it typically allows decisions to be made privately and thus usually does not create public precedents that are important to support the development of law and inculcation of societal values.

what is the transformative model?

It rejects problem solving as a goal of mediation and add party empowerment to that of enhanced understanding between parties. This approach aims at changing the parties in the midst of conflict - making the parties stronger themselves ("empowerment") and more open to an understanding of each other ("recognition").

1. Who is this client?

Lawyers should try to determine not only the clients' goals and interests but also the clients' capabilities and even to some degree the clients' psychological makeup. (a) is this a client who would benefit from playing an active role in mediation? (b) is this a client who requires protection by the attorney?

What criteria can you use to determine how particular types of disputes might be resolved?

Nature of the dispute; relationship between disputants; amount in dispute; speed; privacy; desired level of participate; setting precedent; binding decision; reasoning behind dispute; control over the process; need for an expert decision maker (facilitative/evaluative); desired closure; strengths of legal claim (weak claim = negotiation).

The Overview

Once you gain an understanding of the problem as the client sees it and of those solution the clients wants, you are ready to move to the heart of the interview: the overview. By overview, you should carefully scrutinize the whole of the client's problem during this stage. You must determine three important issues during the problem overview portion of the initial client interview: The sequencing of topics; the nature of the questions put the client; and the techniques of following up initial topic questions.

Explain how negotiation can be a four-step linear process

Orientation and positioning: Orientation: The way in which a negotiator thinks about the basic approach and style of the other negotiator. Positioning: It refers to the opening position that the negotiator establishes to gain information. Argumentation: legal and factual issues as well as strengths and weakness are clearly outlined and the parties may go back and forth with offers. Emergence and crisis: The parties determine if a deal is going to made and on what terms. Agreement or final breakdown: The parties reach a settlement or the case goes forward to trial for resolution.

Describe the models of negotiation table

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Describe the relationship between broad, narrow, facilitative and evaluative

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Discuss the history of arbitration

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What are the advantages and disadvantages of arbitration?

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What are the advantages and disadvantages of negotiation and mediation?

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What are the advantages and disadvantages of negotiation?

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What are the advatanges and disadvantages of trial?

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What are the main differences between the process of litigation and the ADR process?

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Disadvantages of arbitration PT 1

Some disputants may find arbitration too costly or too slow; Some people might prefer a more public forum; They may regret the loss of opportunity for a full appeal; final determination is out of their own hands; Where one side uses a contract of adhesion to compel an opponent to arbitrate, that opponent may find that the stronger party has designed arbitration terms that create a disadvantage for the opponent.

The states regulation in arbitration

Some people suggest that because arbitration is a private process, the state should not seek to regulate the ethics of the process, but rather should such regulation to private parties and the marketplace.

Step one of effective advocacy in mediation:

Step one: preparing the client for the mediation experience 1. It is important to have the clients understand that the outcome of the mediation process contemplates "win-win," not "win-lose." To be successful at mediation, the client must understand the focus must ultimately come to mutually satisfying the interest of all parties to the dispute. 2. Reconciliation is about coming to an agreement with the other side, adjudication is about getting a judgment against the other side. 3. More settlement options are available through mediation.

Step three of effective advocacy in mediation:

Step three: deciding, when, where, who and how we will mediate this case 1. The overall goal in selecting the mediator should be to find an individual who can truly serve as a neutral, who demonstrates a capacity to work hard, and who will command the respect of both sides. 2. Appropriate considerations for a location would include travel accessibility, ample room for attendees in joint and caucus sessions, adequate travel accessibility, ample room for attendees in joint and lodging opportunities and separation from other distractions.

Step two of effective advocacy in mediation:

Step two: defining the overall goals of mediation 1. The first step of any journey is to decide where you want to go. In a civil trial mediation, that step is taken by simply sitting down with the client and mutually agreeing, in concept, on a range of acceptable outcomes to the mediation process.

Discuss BATNA and Reservation price

The Reservation Price is your bottom line, the amount that you won't go any lower or higher and the BATNA is something you configure that is better than your reservation price and is formulated so you don't have to reach your reservation price.

A new model for choosing among the ADR process (Schneider's article) PT 2

The TJPL approach adds a needed layer to the current analysis of ADR choices by explicitly adding emotional & psychological concerns to that of the traditional legal & financial analysis. This approach helps look at additional factors in order to make a fully educated & beneficial choice for the client. Lawyers must examine the result of the ADR process for the impact on the client. TJPL provides a framework for this analysis that is comprehensive & informative.

What is community-ehnacing mediation?

The mediator helps individuals make decisions about and resolving their disputes in keeping with the values of some relevant community.

What is norm-advocating?

The mediator would provide information about norms to insure secure norms were obeyed. This model is used in a variety of conflicts, including, bioethical, environmental, zoning, and in some instances, discrimination disputes.

How does mediation benefit the court?

There is not consensus among scholars or administrators regarding the ability of alternative dispute resolution processes to relieve court dockets, in offering a variety of methods to resolve disputes, courts can serve the various interests of disputing parties and may unclog their dockets as well.

Common errors in mediation advocacy

Wrong client in the room; Addressing the mediator instead of the other side; Failure to use advocacy tools effectively: Timing mistakes: give critical discovery; Failure to truly close; Lack of patience and perseverance; Misunderstanding conflict: A dispute is a problem to be solved together, not a combat to be won. To prepare for mediation, rehearse answers to questions the mediator is likely to ask.