Chapter 3

Alternative Dispute Resolution

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

Alternative Dispute Resolution



ADR

 Procedures such as negotiations, mediation and arbitration to resolve disputes in a more efficient and effective manner

1.

2.

3.

4.

5.

6.

Speedier Less expensive Use of an expert as the decision maker Proceedings are confidential Decisions are final and not appealable Less formal

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

II. Negotiation



Distributive Negotiation



Integrative Negotiation



Negotiation Stages

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

A. Distributive Negotiation



Win or Lose



When parties are stuck on their positions, they are probably involved in a distributive negotiation

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

C. Negotiation Stages

1.

    

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)

2. Actual Negotiations



Try to focus on interests, not positions



Focus on needs, not wants



Don’t personalize the situation



Don’t interrupt



Listen and repeat what you heard



Don’t dwell on disagreements



Keep your cool, don’t let anger rule



Silence is golden

3. Conclusion of Negotiations

 Remember your

BATNA



Don’t “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

III. Mediation

    

Judicial Mediation Private Mediation Advantages of Mediation Mediator Process of Mediation

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

B. Private Mediation

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

C. Advantages of Mediation

 Most disputes settle prior to litigation  Reduces both time and costs  Neutral 3 rd 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

D. Mediator

  Facilitates the negotiations between the parties Is a neutral 3 rd 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

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

IV. Early Neutral Evaluation (ENE)

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

V. Mini-Trials

A Mini-Trial

is a nonbinding ADR technique that closely resembles a court trial  Parties select a neutral 3 rd 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

VI. Summary Jury Trial

In a Summary Jury Trial…

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

VII. Arbitration (Most Used Method)

     

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

Arbitration

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

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 arbitrator’s award

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 arbitrator’s powers

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.

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 [CCP §1281.9]  The arbitrator can issue subpoenas to ensure witnesses will attend

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]

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

F. Final Decision

 The arbitrator’s 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

VIII. Private Judging



Reference



Temporary Judging

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]

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

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