BUL 4421 Lecture Notes - Lecture 4: Alternative Dispute Resolution

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9 Jun 2016
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Chapter 4: alternative dispute resolution
ADR
Used to settle claims between litigants in many different situations, circumventing the
legal system.
The resolution of legal disputes through methods other than litigation such as:
negotiation, mediation, arbitration, summary jury trials, mini trials, neutral case
evaluations and private trials.
Questions to ask when selecting a dispute resolution method
How concerned am I about keeping costs low?
How quickly do I want to resolve the dispute?
Do I want to keep the dispute private?
Primary forms of alternative dispute resolution
Negotiation: parties that negotiate with or without their lawyers. No juries or judges
involved. Each party tries to maximize its gain. Not a formal alternative dispute
resolution method
Mediation: very common and it's becoming even more common. Disputing parties
select a neutral party to mediate, it doesn't have to be a lawyer but mostly are lawyers.
Most mediators are retired judges. Mediation tries to facilitate an agreement between
parties. Good mediators are persuasive.
Advantages
Preserves relationship throughout dispute
Open communication alleviates bitterness to opposing party
Possibly of creative solution (not necessarily a monetary award)
High level of autonomy
Critics argue that mediation is used to prologue the inevitable
Gives a lot of options to avoid litigation
Cheaper solution
Arbitration
ARD method in which a third neutral party, hears both parties cases and renders a
binding decision
It doesn't care if the parties don't agree with the solution
They can include witnesses
There's not a record of the hearing
The decision is called an award
Few awards are appealed
Supreme Court held arbitration award may only be set aside for four reasons
oThe award resulted from fraud or corruption
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