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BUL 4421 - Chapter 4 Exam
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BUL 4421 - Chapter 4 Exam
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BUL 4421 - Chapter 4 ExamAlternative Dispute Resolution - -The resolution of legal disputes through
methods other than litigation, such as negotiation, mediation, arbitration,
summary jury trials, minitrials, neutral case evaluations, and private trials.
Organizations often use ADR to resolve disputes involving contracts,
insurance, labor, the environment, securities, technology, and international
trade.
- Why might a business prefer to resolve a dispute through Alternative
Dispute Resolution (ADR) rather than litigation? - -First, ADR methods are
generally faster and
cheaper than litigation. Accordingly, the National Arbitration Forum, the
average time from filing a complaint to receiving judgment through litigation
is 25 months.
Because ADR is faster, it is usually cheaper.
Secondly, a business may wish to avoid the uncertainty associated with a
jury decision.
Third, a business may wish to avoid setting a precedent through a court
decision. Many business prefer ADR because of its confidential nature.
Fourth, because many forms of ADR are less adversarial than litigation, the
parties are able to preserve a business relationship.
- Negotiation - -A bargaining process in which disputing parties interact
informally, either with or without lawyers, to attempt to resolve their dispute.
A neutral third party, such as a judge or jury, is not involved.
- Adversarial negotiation - -A party can enter negotiations with one of two
approaches: adversarial or problem solving.
Each party seeks to maximize its own gain
- Problem-solving negotiation - -The parties seek joint gain.
To reach a successful settlement, each part must give up something in
exchange for getting something from the other side.
- Mediation - -An extension of negotiation is mediation.
, The disputing parties select a neutral party to help facilitate communication
and suggest ways for the parties to solve their dispute.
- Advantages of mediation: - --Helps disputing parties preserve their
relationships
-Potential for creative solutions
-Parties to mediation have a high level of
autonomy
-Less costly, less time-consuming, less
complicated
- Disadvantages of mediation: - --informal process improperly creates an
image of
equality between the parties.
-We improperly assume that the resulting
agreement between the parties is also equal.
-Some people may abuse the mediation process in
an attempt to simply draw out the dispute.
- Arbitration - -One of the most frequently used method of dispute
resolution.
It's the resolution of a dispute by a neutral third party outside the judicial
setting.
It is often a voluntary process in that parties typically have a contractual
agreement to arbitrate any disputes.
- Arbitration Hearing - -Quite similar to a trial. Both parties present their
case to a neutral third party; they may represent themselves or use legal
counsel.
However, arbitration is different in several ways:
First, the arbitrator often takes a much more active role in an arbitration
hearing, in the sense that the arbitrator is more likely than a judge to
question a witness.
Second, no official written record of the hearing is kept.
Third, the rules of evidence applicable in a trial are
typically relaxed in arbitration.
Fourth, the arbitrator is not as constrained by precedent as are judges.
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