MGMT340 - Chapter 4 Lecture - Part 2

"Once again, NOTES FROM LECTURE DRIVES THE EXAM QUESTIONS!"

"PAY ATTENTION TO YOUR NOTES!"

ADR

Alternative Dispute Resolution

Alternative Dispute Resolution

Any other formal or informal process used to settle disputes without resorting to a trial

Name the two main means of ADR

Arbitration & Mediation

Mediation

A method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.

Which type of ADR is more costly?

Arbitration, usually. Though it is still less expensive than traditional litigation.

Which type of ADR is more likely to have attorneys present with their clients?

Arbitration. While attorneys may attend mediation as well, the really don't do anything besides guide their clients since mediation is mostly about trying to have the parties work with the mediator to resolve the issues with one another directly.

Main differences between Arbitration & Mediation

Arbitrators are sometimes an individual, sometimes a panel. Mediators are usually just one person meeting with the parties. Arbitration is binding. Mediation is not, until the parties sign an Agreed Order and judge enters the ruling into court records. Mediators are women into the rules of court & procedure. They sometimes offer special rates, so can be less expensive than Arbitrators. While both help avoid litigation: A judge usually is the one to require mediation. A contract usually dictates if parties must use arbitration.

What is one of the biggest reasons cited in the lecture for NOT using ADR as it relates to our society and the law as a whole?

Case law comes from the courts. Landmark cases offer important laws by which new cases can be decided. So, if published opinions are important laws and if those parties had decided to arbitrate or mediate those issues, we would not have the laws that come from these sources. This is part of the foundation of our legal system in America.

True or False: In the case of Mediation, the independent third party the Plaintiff and Defendant agree to use during their negotiations is the one who makes the final decision.

False. Mediators do not make decisions. The parties do (or do not, if they cannot agree).

A judge often will require which type of ADR before giving a trial date?

Mediation.

Which is the least contentious form of ADR?

Mediation. Often mediation can protect the relationships more than other options, including Arbitration. Arbitration is a little friendlier than litigation, but can still be more contentious than mediation.

Bonus: med-arb

Method of alternative dispute resolution whereby the parties begin with mediation and, if mediation fails in a fixed time period, the parties agree to submit to arbitration.

List some of the Pro's of ADR

Not as expensive as litigation More timely (faster) than litigation Private, not open to public, more confidential Parties can select who helps decide the case, which is more flexible than court procedures.

Disadvantages of ADR

Still have to deal with potential bias and prejudices (arbitrators & mediators are still human and you can't completely elinimate all that). Sometimes the rules of law, the rules of evidence, the process, is beneficial to your position. If true, there may be a compelling reason to be in litigation. Case law comes from courts. Our system relys on landmark cases which wouldn't happen if all cases went through ADR. Limited types of disputes can use this, give up court protections, may not be effective if started too soon, could pay two fees if not resolved, and could run past the cases statutes of limitations.

Bonus: There are a few other types of ADRs. Name one.

Summary Jury Trials Rent a Judge Med-Arb Mini Trials

What are some similarities between Arbitration and Mediation?

The parties take their dispute to an independent third party. The decisions are (typically) confidential to the extent the parties agree to keep records private. Neither are a matter of public record. Both mediators and arbitrators are paid for their services. Attorneys MAY attend either mediation or arbitration with their clients in most cases, though typically this is more common with Arbitration. Parties have more say in who the third party is than they do with typical litigation. Overall, both are less costly & take less time than litigation. Neither are bound by Discovery.

True or False: There are no appeals when Arbitration is used. The Arbitrators decision is final.

True.

Bonus: mini-trial

nonbinding process in which attorneys for the disputing parties (typically corporations) present evidence to managers of the disputing parties and a neutral third party, after which the managers attempt to negotiate a settlement in consultation with the third party

Arbitration

settling a dispute by agreeing to accept the decision of an impartial outsider