Alternative Dispute Resolution

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Chapter 3

• Alternative Dispute Resolution

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I. What Is The Best Method To Resolve A Dispute?

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Alternative Dispute Resolution

• ADR
• Procedures such as negotiations, mediation and
  arbitration to resolve disputes in a more
  efficient and effective manner
• Speedier
• Less expensive
• Use of an expert as the decision maker
• Proceedings are confidential
• Decisions are final and not appealable
• Less formal

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ADR

• does not refer to any one type of procedure.
  Rather it refers to a multitude of choices
  individuals have in resolving disputes outside
  the court

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II. Negotiation

• Distributive Negotiation
• Integrative Negotiation
• Negotiation Stages

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Negotiation

• When parties voluntarily work out their
  differences and reach an acceptable solution to
  the dispute in a peaceful manner
• INTEREST BASED NEGOTIATION focuses, not on
  positions, but rather on the underlying interests
  or needs

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Distributive Negotiation

• Win or Lose
• When parties are stuck on their positions, they
  are probably involved in a distributive
  negotiation

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B. Integrative Negotiation

• Win / Win
• Parties participate in joint problem solving
• When the parties are concerned about the
  relationship between them, integrative
  negotiation works best

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C. Negotiation Stages

• Preparations
• Determine goals
• Determine goals of other party
• Identify arguments for and against yourself
• Identify interests and needs of both parties
• Stand in their shoes
• Best Alternative To a Negotiated Agreement (BATNA)

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2. Actual Negotiations

• Try to focus on interests, not positions
• Focus on needs, not wants
• Dont personalize the situation
• Dont interrupt
• Listen and repeat what you heard
• Dont dwell on disagreements
• Keep your cool, dont let anger rule
• Silence is golden

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3. Conclusion of Negotiations

• Remember your BATNA
• Dont burn any bridges
• Good options, combined with deadlines, often
  create the energy needed to reach a settlement
• Review and clarify the agreement, then sign it

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III. Mediation

• Judicial Mediation
• Private Mediation
• Advantages of Mediation
• Mediator
• Process of Mediation

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A. Judicial Mediation

• Court-Ordered
• Judges in participating counties may order the
  parties to undertake mediation
• Parties may still maintain the right to proceed
  with litigation

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B. Private Mediation

• Occurs when the parties contractually agree to
  use mediation as a method of resolving their
  dispute

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C. Advantages of Mediation

• Most disputes settle prior to litigation
• Reduces both time and costs
• Neutral 3rd Party provides a means of focusing on
  the real issues of the dispute
• Parties have an active role in reaching the
  settlement of the dispute

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D. Mediator

• Facilitates the negotiations between the parties
• Is a neutral 3rd party
• When mediators meet individually with each party
  in a caucus, it is called SHUTTLE DIPLOMACY
• Mediator must obtain information from both
  parties to gain success
• No special qualifications or requirements to
  become a mediator

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E. Process of Mediation

• Stage 1 Mediation Process Started
• Stage 2 Opening Session
• Stage 3 Identify Interests and Needs
• Stage 4 Mediated Negotiations
• Stage 5 - Conclusion

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IV. Early Neutral Evaluation (ENE)

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ENE

• Some courts have begun using an ADR technique
  referred to as early neutral evaluation
• It occurs when a judge assigns an evaluator to
  meet with the parties already involved in a
  lawsuit
• The evaluator will review the case and inform
  each party how he sees the case and how it will
  likely play out in court
• The evaluator attempts to get the parties to
  reach a settlement and writes an evaluation

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V. Mini-Trials

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A Mini-Trial

• is a nonbinding ADR technique that closely
  resembles a court trial
• Parties select a neutral 3rd party for advisement
• Parties will agree on the procedures to follow
• Procedures will address what type of discovery
  will be permitted
• Decision makers from each side attend the
  mini-trial
• Goal is, upon hearing the facts for themselves,
  the decision makers will be more inclined at that
  time to reach a settlement to the dispute

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VI. Summary Jury Trial

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In a Summary Jury Trial

• the parties to a dispute agree to present a
  shortened case presentation to a mock jury

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Arbitration (Most Used Method)

• Court-Annexed Arbitration
• Private Arbitration
• Starting the Arbitration
• Selecting the Arbitrator
• Discovery
• Final Decision

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Arbitration

• Most well known method of ADR techniques
• Binding or Non-Binding
• Both California and Federal Government have
  passed legislation favoring arbitration

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A. Court-Annexed Arbitration

• Court order the case to arbitration
• Non-Binding
• Either party may ask for a TRIAL DE NOVO
• There are costly risks in not accepting the
  arbitrators award

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B. Private Arbitration

• The duty to arbitrate dispute arises from either
  statutory obligation, or through a contract
  entered into between the parties
• Giving up the right to litigate a dispute is a
  serious matter and arbitration clauses should be
  knowingly executed
• The arbitration clause establishes the scope of
  the arbitration and the arbitrators powers

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C. Starting the Arbitration

• A SELF-EXECUTING ARBITRATION clause will provide
  a method for selecting the arbitrator, procedures
  for how the arbitration will be conducted, and a
  provision for continuing the arbitration if one
  party refuses to proceed
• A notice is sent to the other party which
  contains what the dispute is about, the amount of
  damages, and what remedy is being sought.
• A response is due within 10 days of service in
  the state, and within 30 days if served outside
  the state.

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D. Selecting the Arbitrator

• One advantage of arbitration is the ability of
  the parties to select the arbitrator
• A STRIKE LIST from an association is a list of
  persons from the panel of neutrals sent to each
  party
• To ensure that the arbitrator is neutral, the
  person selected must disclose information that
  might case bias in favor of one of the parties
  CCP1281.9
• The arbitrator can issue subpoenas to ensure
  witnesses will attend

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E. Discovery (limited)

• Discovery (seeking facts) is normally limited in
  arbitration
• Limited to claims involving personal injury
  unless the arbitration expressly provides for it
  CCP 1283.05, 1283.1

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Example (from CAR form Residential Purchase
Agreement and Joint Escrow Instructions)

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F. Final Decision

• The arbitrators decision is called an AWARD
• Where the award is binding, it is considered a
  final judgment in the dispute
• In most cases, the decision of the arbitrator is
  final
• Awards can be vacated if certain
  violations/corruptions/errors occurred

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VIII. Private Judging

• Reference
• Temporary Judging

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A. Reference

• A REFERENCE is like arbitration, except the
  decision is appealable through the court system
• A GENERAL REFERENCE is where the referee tries
  any and all issues of the dispute
• A SPECIAL REFERENCE is where the referee
  addresses a specific question of fact
• The only requirement for a person to serve as a
  referee is that the person be a resident of the
  county where the court is located CCP 640

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B. Temporary Judging

• The California Constitution in article VI,
  section 21 provides
• On stipulation of the parties litigant the court
  may order a cause to be tried by a temporary
  judge who is a member of the State Bar, sworn and
  empowered to act until final determination of the
  cause
• The decision rendered by the temporary judge is
  final and carries the same weight as if made by a
  permanent judge
• A decision issued by a temporary judge is subject
  to appeal based on errors of fact or law

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Chapter Summary

• What is the Best Method to Resolve a Dispute?
• Negotiation
• Distributive Negotiation
• Integrative Negotiation
• Negotiation Stages
• Mediation
• Judicial Mediation
• Private Mediation
• Advantages of Mediation
• Mediator
• Process of Mediation
• Early Neutral Evaluation

• Mini-Trials
• Summary Jury Trial
• Arbitration
• Court-Annexed Arbitration
• Private Arbitration
• Starting the Arbitration
• Selecting the Arbitrator
• Discovery
• Final Decision
• Private Judging
• Reference
• Temporary Judging