Alternative Methods of Dispute Resolution

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ISBN: 9780766821101 | 0766821102
Cover: Paperback
Copyright: 8/2/2002

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Why should paralegals know about ADR? Situations that call for understanding the alternatives to litigation and involve planning and preparing for selecting and executing dispute resolution strategies may arise. Paralegals may represent parties in ADR proceedings before administrative agencies or serve as third party neutrals. This book uncovers the distinguishing factors, advantages and disadvantages of various methods in ADR, and helps legal professionals understand each process to determine and carry out dispute resolution strategies. Each chapter includes examples and issues that give paralegals opportunities to examine potential solutions and develop their reasoning abilities. Judicial options show how the courts handle dispute resolution issues when the outcome is not certain. Web site resources, a glossary, and index provide quick references for locating materials in the book.

Table of Cases

xiii

Preface

xiv

Acknowledgments

xix

Introduction The ADR Movement

xxii

Part One An Overview of ADR

(42)

Introduction

(1)

The Methods of Dispute Resolution

(24)

Unilateral Action in Dispute Resolution

(5)

Inaction

(2)

Acquiescence

(1)

Self-Help

(2)

Bilateral Action in Dispute Resolution

(1)

Negotiation

(1)

Third-Party Evaluation as a Prelude to Dispute Resolution

(1)

Early Neutral Evaluation

(1)

Summary Jury Trial

(1)

Third-Party Assistance in Dispute Resolution

(3)

Ombuds

(1)

Private Mediation

(1)

Court-Sponsored Mediation

(1)

Mini-Trial

(1)

Third-Party Adjudication in Dispute Resolution

(9)

Private Arbitration including High/Low and Final Offer Arbitration

(2)

Court-Annexed Arbitration

(1)

Mediation-Arbitration

(1)

Litigation

(1)

Private Judging

(4)

Comparing Dispute Resolution processes

(4)

The Participants

(16)

The Party or Parties

(2)

Unilateral Action

(1)

Bilateral Action

(1)

Third-Parry Evaluation

(1)

Third-Parry Assistance

(1)

Third-Parry Adjudication

(1)

The Attorney

(2)

The Paralegal

(3)

The Neutral Third Party

(1)

The Jury

(7)

Part Two Unilateral Action in Dispute Resolution

(36)

Introduction

(1)

Inaction

(8)

Inaction as a Dispute Resolution Process

(2)

Inaction by the Aggrieved Parry

(2)

Inaction by the Party Who Caused the Grievance

(1)

The Advantages and Disadvantages of Inaction as a Dispute Resolution Process

(5)

Acquiescence

(8)

Acquiescence as a Dispute Resolution Process

(1)

Acquiescence as an Act

(1)

Acquiescence as an Omission

(1)

Differentiating Acquiescence from Negotiation

(1)

The Advantages and Disadvantages of Acquiescence as a Dispute Resolution Process

(6)

Self-Help

(18)

Self-Help as a Dispute Resolution Process

(10)

Self-Help under Statute

(2)

Self-Help under Common Law

(5)

Self-Help as Provided by Contract

(3)

The Advantages and Disadvantages of Self Help as a Dispute Resolution Process

(7)

Part Three Bilateral Action in Dispute Resolution

(38)

Introduction

(1)

Negotiation

(36)

Preparing for Negotiation

(8)

Evaluating the Dispute

(7)

Preparing the Parties for Their Roles in the Negotiation Process

(1)

Selecting a Negotiating Strategy

(5)

Negotiating from a Preconceived Position

(2)

Negotiating from Interests

(1)

Executing the Negotiation Strategy: When, Where, and How

(5)

The Timing

(1)

The Setting

(1)

Executing the Strategy

(3)

Enforcing a Negotiated Agreement

101

(1)

Negotiating in Bad Faith

102

(4)

The Advantages and Disadvantages of Negotiation as a Dispute Resolution Process

106

(12)

Part Four Third-Party Evaluation as a Prelude to Dispute Resolution

118

(14)

Introduction

119

(1)

Early Neutral Evaluation

120

(6)

The Early Neutral Evaluation process

121

(1)

The Advantages and Disadvantages of Early Neutral Evaluation as a Dispute Resolution Process

122

(4)

Summary Jury Trial

126

(6)

The Summary Jury Trial Process

127

(1)

The Advantages and Disadvantages of Summary Jury Trial as a Dispute Resolution Process

128

(4)

Part Five Third-Party Assistance in Dispute Resolution

132

(88)

Introduction

133

(1)

Ombuds

134

(12)

The Ombuds (Ombudsman)

135

(4)

Classical Ombuds

136

(1)

Organizational Ombuds

136

(2)

Advocate Ombuds

138

(1)

The Ombuds Process

139

(1)

Ethical and Legal Issues

139

(3)

Conflict of Interest

140

(1)

Impartiality

141

(1)

Privileged Communication

141

(1)

The Advantages and Disadvantages of Ombuds as a Dispute Resolution Process

142

(4)

Private Mediation

146

(34)

What Should a Party Expect at the Mediation

147

(1)

Preparing for Private Mediation

147

(5)

Selecting the Rules for the Mediation

147

(1)

Selecting and Compensating the Mediator

148

(1)

Selecting the Timing and the Setting for the Mediation

148

(1)

Preparing the Participants for Their Roles in the Mediation Process

149

(3)

The Mediation Process

152

(2)

Enforceability of the Mediated Agreement

154

(4)

Ethical and legal Issues

158

(15)

Training, Qualifications, and Certification of Mediators

158

(1)

Ethical Rules for Mediators

159

(1)

Impartiality, Fairness, and Imbalances in Power and Knowledge

159

(4)

Conflict of Interest

163

(2)

Confidentiality

165

(7)

Mediator's Liability and Immunity

172

(1)

The Advantages and Disadvantages of private Mediation as a Dispute Resolution process

173

(7)

Court-Sponsored Mediation

180

(34)

Court-Sponsored Mediation in the Federal Courts

181

(2)

Court-Sponsored Mediation in the State Courts

183

(1)

Preparing for Court-Sponsored Mediation

184

(1)

The Litigation/Mediation Process

185

(12)

Enforceability of the Mediated Agreement

197

(5)

Legal and Ethical Issues

202

(4)

The Advantages and Disadvantages of Court-Sponsored Mediation

206

(8)

Mini-Trial

214

(6)

The Mini-Trial Process

215

(1)

Selecting the Mini-Trial as an Appropriate Dispute Resolution Process

216

(1)

The Advantages and Disadvantages of the Mini-Trial as a Dispute Resolution Process

216

(4)

Part Six Third-Party Adjudication in Dispute Resolution

220

(110)

Introduction

221

(1)

Private Arbitration

222

(48)

Private Arbitration as a Dispute Resolution Process

223

(6)

The Purpose of Private Arbitration

223

(1)

The Rules of Private Arbitration

223

(6)

The Private Arbitration Process

229

(6)

The Arbitration Agreement

230

(1)

Initiating the Arbitration Process

231

(1)

The Respondent's Failure to Participate

232

(1)

The Prehearing Activities

232

(3)

Final Offer, Last Offer, or Baseball Arbitration

235

(1)

High/Low or Bounded Arbitration

236

(1)

Ethical and Legal Issues

236

(27)

Arbitrability

237

(1)

Impartiality

238

(1)

Denial of Trial by Jury

238

(9)

Denial of Access to a Forum to Seek Redress of a Grievance

247

(4)

Inability to Withdraw from the Process

251

(1)

Lack of Judicial Review

251

(12)

The Advantages and Disadvantages of Private Arbitration as a Dispute Resolution Process

263

(7)

Court-Annexed Arbitration

270

(14)

The Court-Appointed List of Arbitrators

273

(1)

The Court-Annexed Arbitration Program

273

(3)

Filing of the Complaint and the Referral to Arbitration

274

(1)

Pretrial Discovery and the Timing of the Arbitration Hearing

274

(1)

Prehearing Statements

274

(1)

The Arbitration Hearing

274

(2)

The Arbitrator's Award

276

(1)

Opportunity for a Trial de novo

276

(1)

Comparing Court-Annexed Arbitration Programs

276

(2)

Preparing for Court-Annexed Arbitration

278

(1)

The Advantages and Disadvantages of Court-Annexed Arbitration as a Dispute Resolution Process

278

(6)

Mediation-Arbitration

284

(6)

The Mediation-Arbitration (Med-Arb) Process

285

(1)

The Advantages and Disadvantages of Mediation-Arbitration as a Dispute Resolution Process

285

(5)

Litigation

290

(30)

The Litigation Process

291

(25)

Pretrial

297

(11)

The Trial

308

(5)

Execution of the Judgment

313

(1)

Appeals

313

(3)

The Advantages and Disadvantages of Litigation as a Dispute Resolution Process

316

(4)

Private Judging

320

(10)

Private Judging as a Matter of Contract

321

(1)

The Process

321

(1)

Advantages and Disadvantages of the Contractual Form of Private Judging as a Dispute Resolution Process

321

(1)

Private Judging as Authorized by Law

322

(2)

The Process

323

(1)

Advantages and Disadvantages of Court-Appointed Private Judging as a Dispute Resolution Process

323

(1)

The Social Implications of Private Judging

324

(6)

Part Seven Selecting a Dispute Resolution Strategy

330

(51)

Introduction

331

(1)

Selecting a Dispute Resolution Process before the Dispute Arises

332

(24)

Predispute Arbitration Provision

333

(9)

Predispute Mediation Provision

342

(1)

The Subtle Impact of Nondispute Resolution Provisions on the Selection of a Dispute Resolution Process

342

(14)

Liquidated Damages

342

(2)

Repossession

344

(2)

Costs and Attorney's Fees

346

(2)

Confession of Judgment

348

(1)

Choice of Law

348

(2)

Choice of Forum

350

(6)

Selecting a Dispute Resolution Strategy after the Dispute Arises

356

(25)

Creating a Strategy for Resolving the Dispute

357

(15)

Preparing to Discuss Dispute Resolution Processes at the Counseling Session

357

(4)

Dispute Resolution as a Strategy

361

(5)

Assisting the Decision-Making Process with Visual Aids

366

(1)

Assessing the Client's Level of Acceptable Risk

367

(4)

Is a Nonjudicial Solution Always Appropriate?

371

(1)

Preparing for the Process

372

(1)

Initiating the Dispute Resolution Plan

372

(9)

Selecting the Best Timing for a Dispute Resolution Process

372

(1)

Selling a Dispute Resolution Process to the Other Parry

373

(1)

Creating the Dispute Resolution Documents

373

(8)

Appendix A The Ombudsman Association---Code of Ethics Standards of Practice, Glossary

381

(2)

Appendix B Uniform Mediation Act

383

(4)

Appendix C Mediation Alternatives to Judicial Action---Florida Statutes title V, chapter 44

387

(3)

Appendix D Federal Arbitration Act, USC title 9

390

(4)

Appendix E Uniform Arbitration Act

394

(8)

Appendix F Excerpt from the American Arbitration Association's Commercial Dispute Resolution Procedures (Arbitration Rules)

402

(8)

Appendix G Rules of the United States District Court for the Middle District of Florida---Court Annexed Arbitration

410

(4)

Appendix H Local Rules of the United States District Court for the Northern District of California ADR Local Rule Non---Binding Arbitration

414

(5)

Appendix I Hawaii Arbitration Rules

419

(8)

Appendix J Private Judging---California Constitution, Statute, and Court Rule

427

(4)

Glossary

431

(6)

Index

437

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Alternative Methods of Dispute Resolution

Summary

Table of Contents

Supplemental Materials