Alternative Dispute Resolution

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

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. ADR 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

  • 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

Preparation

  • 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 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

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

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 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

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

  • Arbitration
    (Most Used Method)
  • Judicial 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

Online ADR is changing traditional arbitration process

A. Judicial Arbitration
(Court-Annexed)

Court orders 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

G. Online Arbitration

Emails, videoconferencing, and mobile devices can be used for online arbitration

Arbitration agreements and proceedings can be done in an online setting

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