Chapter 5

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  1. Conflicts and negotiation (1)
     Conflict - whenever there are 2 or more points of view.

    Dispute - arises when one party makes a claim that another party denies.
  2. Conflict and negotiation (2)
    Negotiation  - is the process used to persuade or coerce someone to do what you want them to do.
  3. Conflicts and negotiation (3)
    Positional bargaining - a method of negotiation that focuses on the parties exchanging offers, with concessions being made so that parties find a middle ground.
  4. Conflicts and negotiation (4)
    Principled interest-based negotiations - Seven Elements

    • Communication
    • Relationships
    • Interests
    • Options
    • Legitimacy
    • Alternatives
    • Commitment
  5. Alternative dispute resolution (ADR) systems (1)
    Range of options

    • $ Negotiated settlement
    • $$Mediation
    • $$$Arbitration
    • $$$$Focus Groups
    • $$$$$Trial and Appeal
  6. Alternative dispute resolution (ADR) systems (2)
    Settlements - universally acknowledged that both parties to litigation are losers.
  7. Alternative dispute resolution (ADR) systems (3)
    Focus groups - attorneys assemble a group of citizens and present their evidence. The group then deliberates and makes findings. This dress rehearsal gives attorneys insight into possible jury reaction to evidence and points out weaknesses in the case.
  8. Arbitration (1)
    Arbitration - disputing parties sometimes agree to have a third party decide the merits of the dispute. The arbitrator should be disinterested in any financial impact of the decision and neutral regarding the issues of the dispute.
  9. Arbitration (2)
    Submission - the act of referring a matter to arbitration.

    voluntary arbitration - agreement to submission

    mandatory arbitration - when the statute or court requires parties to arbitrate.

    award - the decision from arbitration.
  10. Arbitrators
    • Expertise
    • Number Chosen
    • Authority over Certain Matters
  11. Awards
    The decision announced by an arbitrator.
  12. The Federal Arbitration Act
    The Congressional enactment in 1925, then further enacted in 1947 to encourage disputing parties to use arbitration instead of litigation.
  13. Statutorily mandated arbitration
    A form of resolving a dispute, as an alternative to litigation, that is required by a statute.
  14. Voluntary/contract-based arbitration (1)
    Predispute arbitration clause - commonly appear in business contracts. Contracting parties show good judgment in understanding conflicts exist, conflicts give rise to disputes that are better resolved though arbitration.
  15. Voluntary/ contract-based arbitration (2)
    Postdispute arbitration agreement  - parties agree that bad things will happen, with expectation that that problems might occur.
  16. Judicial review
    The power of courts to declare laws enacted by legislative bodies and actions by executive branch to be unconstitutional.
  17. Mediation
    A process by which a third person, a mediator attempts to assist disputing parties resolve their differences.
  18. Caucus
    The name used for a private meeting between a mediator and one of the parties involved in mediation.
  19. Advantages
    The disputing parties retain full control over the resolution, or lack there of the controversy. The parties can decide how much time and effort to put into the process.
  20. Disadvantage
    The parties must agree on who will be their mediator, and requirements for training are not universally defined.
  21. Med-Arb
    An abbreviation for an alternative dispute resolution system that involves parties going through mediation and agreeing to resolve as many issues as possible. These parties agree that any matters not resolved in the mediation process will then be arbitrated.
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Chapter 5
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