Chapter 5 Learn Smart

Identify the reasons that cause disputing parties in the U.S. to chose settlement over litigation

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

Identify the elements of a principled, interested based negotiation stated by Roger Fisher, William Ury, and Bruce Patton in the book getting to yes

-Communication -Interests -Options -relationship

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

In the context of the popularity of ADR techniques, identify the primary reasons for the increase in number of mediations

-less cost than arbitration and litigation -the retention of control over when to settle and when to continue disputing the disputing parties -the reduction of the legal system governing the process

Mediators are permitted to impost a binding solution's on disputing parties.

False

The chances of a negotiated settlement through positional bargaining are high because positional bargaining focuses exclusively on underlying conflicts

False

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

False

Identify the basic forms of agreements to voluntary arbitrate-

The pre-dispute arbitration clause and the post-dispute arbitration agreement.

Jerry owns steps corp.. a shoe manufacturing company, wheras Jacob owns bring cop a leather goods manufacturing company. Bother 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 a new

The factors that determine how an arbitrator is selcted

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

Identify the features of statutorily mandated arbitration?

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

Mediation can handle existing and potential conflicts productively because it typically focuses on

-Getting the parties to negotiate through an interest based method

Identify the impacts of the federal arbitration?

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

Identify the characteristics of the process of arbitration-

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

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 true statements about an arbitrators award?

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

Identify the true statements about statutorily mandated arbitration-

-Many courts have held that mandatory arbitration statutes that close the courts to litigants by compelling them to resort to arbitrators decisions are unconstitutional -Mandatory arbitration must be in accord with procedural and substantive due process of law.

According to subsection c under the selection 10 of the federal arbitration (FAA) Identify the actions found to constitute misconduct on the party of an arbitrator that justify vacating an arbitration award.

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

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.

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

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

The mediation process in their order

-The mediators explain the procedure to which they ask the disputing parties to agree. -All parties make a statement about their views of the dispute. -The mediators attempt to get the disputing parties talking to one another. -The mediators assist the parties in finding possible solutions to the dispute.

Identify a true statement about a voluntary arbitration proceeding

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

Why do attorneys often use focus groups in significant cases?

-They provide insight into possible jury reaction to the evidence -They point up weaknesses in the case in question

In the context of the review of statutorily mandated arbitration, when a court tries the issues that were resolved through arbitration a new as if no arbitration occurred is

A de novo review

The alternative dispute resolution (ADR)

A dispute resolution tool that help preserve an ongoing business relationship between disputing parties.

Arises when parties already in dispute decide the arbitration is better than litigation

A postdispute arbitration agreement

Appears in business contracts.

A predispute arbitrate

The outcome that is possible without the agreement of the other party in a negotiation

An Alternative

Identify a similarity between voluntary arbitration and mandatory arbitration?

An agreement to submit an issue to arbitration is considered irrevocable.

In the context of arbitration, 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.

An alternative dispute resolution system in which disputing parties agree to have a third party decide the merits of the dispute

Arbitration

Is a form of alternative dispute resolution system that is used to avoid expenses to litigation.

Arbitration

A private meeting between the disputing parties and their attorneys and the mediator outside their presence of the other disputant is known as

Caucus

They exist whenever there are two or more points of view.

Conflicts

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

Disputes

Involves the application of accepted standards to the topic negotiated

Legitimacy

Mediation is the process by which a third party called a ----------- attempts to assist disputing parties in resolving their differences.

Mediator

Least expensive in time, cost, and emotion.

Negotiated settlement.

The process used to coerce of persuade someone to do what one wants them to do

Negotiation

Starts negotiating with the highest reasonable price

Seller

The subsections under section 10 of the federal arbitration act (FAA)

Subsection a) it provides that an arbitrators award can be vacated if it can be proved that is was procured by fraud, corruption, or other undue means.

Is an alternative dispute resolution technique that does not need judicial review.

The mediation process

Most expensive in emotions, time, and cost.

Trial and appeal.

Arbitration is required only in those cases in which a party has demanded a jury trial

True

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

True

Mediators are individuals who

Utilize the princibles of interest based negotiations

Arbitration is frequently preferred to litigation because of the use of

an expert

The decision handed down by arbitrators or an arbitrator after an arbitration hearing is

award

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

bargaining

Arbitrators are generally chosen by

disputing parties

Identify the various aspects of the process of mediation

does not need judicial review

A postdispute agreement is considered the wise and ultimately more efficient approach to alternative dispute than predispute

false

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 the time of filling.

The subsections under section 10 of the federal arbitration act (FAA)

subsection b) It states that a court or partial arbitrator lacks the ability to consider evidence and to reach a fair conclusion.

The subsections under section 10 of the federal arbitration act (FAA)

subsection c) It covers arbitral misconduct that does not lend itself to a precise definition.

The subsections under section 10 of the federal arbitration act (FAA)

subsection d) It relates to the arbitrability of an underlying dispute.

Starts negotiating with the lowest reasonable prince

the buyer