Ch 5 SmartBook

Identify the basic forms of agreements to voluntarily arbitrate.

- A postdispute arbitration agreement - The predispute arbitration clause

Identify the factors that determine how an arbitrator is selected.

- A provision in the agreement to arbitrate - The statute that requires the arbitration

In the context of arbitration, identify a true statement about submission.

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

In arbitration cases that involve interstate commerce provisions of the Federal ______ Act control.

Arbitration

Which of the following is true of a submission in the absence of a statute authorizing voluntary arbitration?

The duties and rights of the parties to the submission are described and limited by their agreement.

In the context of the review of statutorily mandated arbitration, 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

True or false: Arbitration is required only in those cases in which a party has demanded a jury trial.

True

True or false: The flexibility of mediation allows parties to utilize this process in conjunction with other dispute resolution systems.

True

The things that can be done away from the bargaining table in interest based negotiation are known collectively as _____

alternatives

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

an expert

While reviewing voluntary arbitration awards, courts interfere with an arbitrator's award by _____.

analyzing if the decision is against public policy

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

arbitrate to be in writing

True or false: Mandatory arbitration panels are usually made up of a panel of three.

true

Mediators are individuals who _____.

utilize the principles of interest-based negotiations

During the caucuses involved in a mediation, the mediator must _____.

win the trust and confidence of each party to the dispute

Identify the reasons that cause disputing parties in the United States to choose settlement over litigation.

- Americans have an instinctive desire to resolve differences, and many fear going to court. - Both parties to litigation are often losers.

Identify the cases that are covered by mandatory arbitration statutes.

- Cases that have claims exclusively for money of a small amount - Cases concerning issues arising out of divorces

Identify the true statements about a voluntary arbitration proceeding.

- Error of law renders an arbitrator's award void when it requires the parties to violate a positive mandate of the law. - The resulting award is usually binding.

Identify the true statements about judicial review of a voluntary arbitration proceeding.

- Fraudulent or arbitrary actions by the arbitrator may be corrected by judicial review. - The judicial review of the arbitrator's award is quite restricted.

Identify the elements of a principled, interested-based negotiation stated by Roger Fisher, William Ury, and Bruce Patton in the book Getting to Yes.

- Interests - Options - Communication - Relationship

Identify the impacts of the Federal Arbitration Act.

- It caused the federal policy to clearly favor arbitration of commercial disputes. - It changed public policy perceptions of arbitration and how states can regulate its use.

Identify the true statements about the process of arbitration in resolving business disputes.

- It does not involve formal pleadings and discovery in its hearing. - It is a private proceeding with no public record available to the press.

Identify the true statements about an arbitrator's award.

- It is final on all issues submitted. - It is enforceable by a court.

In the context of settlement and litigation, identify the true statements about a dispute between a business and its customer.

- It is not good business from a goodwill and public relations standpoint to sue the customer. - The customer is more likely to receive the sympathy of the jury during litigation.

Identify the characteristics of the process of arbitration.

- It provides a relatively quick resolution of disputes. - It helps ease congested court dockets.

Identify the features of statutorily mandated arbitration.

- Mandatory arbitration cases are usually presented to a panel of three. - Arbitrators are paid a per-diem fee.

Identify the true statements about statutorily mandated arbitration.

- Mandatory arbitration must be in accord with procedural and substantive due process of law. - Courts have held that mandated arbitration statutes that compel litigants to resort to arbitrator's decisions are unconstitutional.

Identify the most popular alternative dispute resolution (ADR) systems used by people and businesses attempting to resolve disputes.

- Mediation -Arbitration

According to subsection (c) under section 10 of the Federal Arbitration Act (FAA), identify the actions found to constitute misconduct on the part of an arbitrator that justify vacating an arbitration award.

- Participation in communications with a party or a witness without the knowledge or consent of the other party. - Receipt of evidence as to a material fact without notice to a party. - Conducting

Identify the various aspects of the process of mediation.

- The conduct of the mediator is not subject to judicial review. - It does not involve the legal issues found in the arbitration process.

Identify the advantages of the process of mediation.

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

Identify the factors that must be taken into consideration during the selection process of an arbitrator.

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

Identify the true statements about alternative dispute resolution (ADR) systems.

- The use of ADR systems considerably reduces the costs associated with litigation. - There is no requirement for disputing parties to begin a lawsuit to use any form of ADR.

Match the range of options associated with alternative dispute resolution (ADR) systems with their features. - Trial and appeal: - Negotiated settlement:

- Trial and appeal: Most expensive in emotions, time, and cost - Negotiated settlement: Least expensive in cost, time, and emotion

Identify the grounds on which an arbitration award may be set aside or vacated according to section 10 of the Federal Arbitration Act.

- Where the award was procured by corruption, fraud, or other undue means - Where the arbitrators were guilty of misconduct in refusing to hear evidence pertinent and material to the controversy

Arbitration is preferred to litigation because Blank______.

- a judge cannot be as informed as an expert arbitrator - the former is more quick and efficient

List the following steps of the mediation process in their order of occurrence with the first step on top.

1. The mediators explain the procedures to which they ask the disputing parties to agree. 2. All parties make a statement about their view of the dispute. 3. The mediators attempt to get the disputing parties talking to one another. 4. The mediators assist the parties in finding possible solutions to the dispute.

Identify a scenario that illustrates a de novo review.

A court accepts Maya's request to try the dispute between her and a colleague anew following a mandatory arbitration that was not in her favor.

In the context of negotiation Conflicts: Disputes:

Conflicts: They exist whenever there are two or more points of view. Disputes: They arise when one party makes a claim that another party denies.

True or false: A postdispute agreement is considered the wiser and ultimately more efficient approach to alternative dispute resolution (ADR) than a predispute arbitration.

False

True or false: Mediators are permitted to impose a binding solution on disputing parties.

False

True or false: Submission is the process of concluding an arbitration proceeding.

False

True or false: Subsection (d) under section 10 of the Federal Arbitration Act requires the court to review the merits of every construction of a contract.

False

True or false: Unlike alternatives, legitimacy involves having the parties state unsupported propositions in a negotiation.

False

Identify a true statement about the Federal Arbitration Act (FAA).

It covers any arbitration clause in a contract that involves interstate commerce.

Match the elements of a principled, interest-based negotiation with their descriptions Legitimacy: An alternative:

Legitimacy: It involves the application of accepted standards to the topic negotiated. An alternative: It is an outcome that is possible without the agreement of the other party in a negotiation.

Laws providing for mandatory arbitration are often challenged on the grounds they violate the ______ litigant's amendment

Seventh

Match the subsections under section 10 of the Federal Arbitration Act (FAA) with their descriptions. Subsection (a): Subsection (b): Subsection (c): Subsection (d):

Subsection (a): It provides that an arbitrator's award can be vacated if it can be proved that it was procured by fraud, corruption, or other undue means. Subsection (b): It states that a corrupt or partial arbitrator lacks the ability to consider evidence and to reach a fair conclusion. Subsection (c): It covers arbitral misconduct that does not lend itself to a precise definition. Subsection (d): It relates to the arbitrability of an underlying dispute.

Identify a true statement about the procedure when a claim filed in court that is covered by the mandatory arbitration law is placed in the arbitration track at time of filing.

The date and time of hearing are assigned at the time of filing.

In the context of the review of statutorily mandated arbitration, when a court tries the issues that were resolved through arbitration anew, as if no arbitration occurred, it is known as _____.

a de novo review

When a third party decides the merits of a dispute, the decision maker, who should be disinterested in any financial impact of the decision and neutral regarding the issues presented in the dispute, is known as a(n) _____.

arbitrator

In the context of alternate dispute resolution (ADR) systems, focus groups help the disputing parties to settle their dispute by prompting them to _____.

avoid going through either an arbitration or a trial

The decision handed down by arbitrators or an arbitrator after an arbitration hearing is known a(n) _____.

award

The fourth stage of the typical mediation process involves ____

brainstorming

A private meeting between the disputing parties and their attorneys and the mediator outside the presence of the other disputant is known as a(n) ____

caucus

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

does not involve even an informal presentation of evidence

The mediation process is an alternative dispute resolution (ADR) technique that _____.

does not need judicial review

True or false: The chances of a negotiated settlement through positional bargaining are high because positional bargaining focuses exclusively on underlying conflicts.

false

Recognizing that a jury's function is to determine the facts, attorneys frequently use _____ in significant cases.

focus groups

The alternative dispute resolution (ADR) system is a dispute resolution tool that _____.

helps preserve an ongoing business relationship between disputing parties

An arbitrator's award must be _____.

in writing in most states

Arbitration is a form of alternative dispute resolution (ADR) system that _____.

is used to avoid the expenses of litigation

____-_____ is an additional alternative dispute resolution (ADR) technique in which the parties resolve all the matters of contention that they can, and they agree to arbitrate the unresolved matters.

med-arb

Mediation is the process by which a third 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

The usual procedure for a claim filed in court that is covered by the mandatory arbitration law is to _____.

place the claim in the arbitration track at time of filing

A negotiation method in which parties begin in a competitive style by stating their respective expectations is known as _____ _____

positional bargaining

Jerry owns Steps Corp., a shoe manufacturing company, whereas Jacob owns Brink Corp., a leather goods manufacturing company. Both enter into a business partnership. After a few months, Jerry accuses Jacob of swindling money. They approach an arbitrator to resolve the issue. The decision is made in favor of Jacob. However, Jerry feels that justice has not been meted out. He decides to seek a de novo review so that he can _____.

request the court to try the issue anew

A court may reverse the award granted by an arbitrator in a voluntary arbitration proceeding only when _____.

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

An aspect of negotiation is that _____.

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

People often perceive conflicts as bad because____

they lead to disputes