Term
| What is hybrid processes? |
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Definition
| A combination of various elements of the primary dispute resolution processes into a new and unique process. Efforts to gain the best of the attributes of two or more processes (negotiation, mediation, arbitration, and/or non-binding evaluation) to tailor dispute resolution more precisely to the unique conflict. |
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Term
| What is Binding Hybrid Processes? |
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Definition
| Court refers a case, with the agreement of the parties, to a privately selected and paid neutral referee whose decision is entered ad the decision of the court. Special characteristics: 1. binding decision, but appealable for errors of law, 2. referee is former judge with subject area expertise, 3. voluntary |
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Term
| What is the advantages of a private judge? (as compared to court) |
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Definition
| 1. Faster, convenient, efficient, 2. private and flexible, 3. choose judge, 4. has all the benefits of adjudication, 5. relieves caseload pressures on public courts |
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Term
| What are the disadvantages of a private judge? (as compared to court) |
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Definition
| 1. "rich man's justice" - only the wealth can take advantage of this, 2. two-tiered justice system - will there be a private justice system for the rich and a public one for the poor? 3. secret trial - isn't are justice system public, 4. "cut-in-line" to appellate courts - will more people cause a longer line at appellate courts?, 5. brain drain - will the most experienced judges leaves the bench to become a private judge, 6. undermines court reform - will those most able to improve the courts instead "opt out?" |
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Term
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Definition
| A dispute resolution process that utilizes a neutral third party to first mediate the dispute and then arbitrate any issues not settled through mediation. It is used when mediation would be advantageous to both parties, but a final decision is needed |
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Term
| What are the advantages of Med-Arb? |
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Definition
| 1. neutral is familiar with case; can make better informed decision, 2. neutral can encourage parties to settle by "hinting" at decision, 3. efficient use of time, 4. different neutral preserves integrity of both processes |
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Term
| What are the disadvantages of Med-Arb? |
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Definition
| 1. Processes cannot be combined without compromising the integrity of each (can be coercive, facts in mediation may affect arbitration decision) & it takes more time |
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Term
| What are the advantages with a mediator advisory opinion? |
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Definition
| 1. quick and efficient, 2. can serve as a reality check (BATNA), 3. can serve as basis for settlement or withdrawal, 4. weeds out frivolous cases from arbitration |
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Term
| What are the disadvantages of med-arb with a mediator advisory opinion? |
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Definition
| 1. coercive, 2. "winner" may want to go to arbitration, 3. problem of "incorrect" recommendation |
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Term
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Definition
| an arbitration hearing is held first; arbitrator's award is sealed. Then parties mediate. If mediation fails, award is revealed. |
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Term
| What are the advantages of arb-med? |
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Definition
| 1. gives parties incentive to moderate their position, 2. avoids arbitrator bias, 3. can save time if same neutral (already knows facts) |
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Term
| What are the disadvantages of arb-med? |
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Definition
| 1. may escalate conflict by starting adversarialy, 2. may end mediation prematurely, 3. neutral may steer parties toward his or her decision, 4. if mediation works, time wasted on arbitration |
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Term
| What are non-binding hybrid processes? |
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Definition
| processes that seek to avoid adjudication by providing the parties with neutral information or assessment so that they can better negotiate a settlement. (use primarily in legal disputes to evaluate the likely outcome of the dispute if taken to court & the result of the processes is a non-binding opinion, which is followed by renewed negotiations) |
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Term
| What are court-annexed ADR processes? |
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Definition
| processes that are considered settlement devices whose goal is to resolve cases that have been filed in court, short of trial. (these settlement devices usually occur after a substantial amount of legal discovery has taken place and is most often voluntary, but judges may order the parties to a process) |
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Term
| What is a judicial settlement conference? |
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Definition
| an informal meeting during a pre-trial conference where the judge assigned to the case assists the parties in settlement discussions. (judge may act as mediator, provide legal clarifications, possible settlements & it looks a lot like mediation, but is not because judge has decision-making power over the parties) |
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Term
| What is neutral expert evaluation? |
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Definition
| an expert in the subject matter of the dispute evaluates the issues and gives a non-binding opinion regarding the facts of the dispute (this neutral, non-binding opinion can help parties in their renewed negotiation & it is used more often in complex technical and/or scientific disputes) |
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Term
| What is early neutral evaluation? |
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Definition
| a neutral attorney with expertise in the subject matter of the case meets with the parties and their lawyers soon after the case is filed in court (neutral attorney gives a frank, non-binding evaluation of the strengths and weaknesses of the case to the parties & the goal is that this neutral evaluation will aid the parties in their settlement discussions) |
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Term
| What is neutral fact-finding? |
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Definition
| a dispute resolution process in which a neutral third party collects information about a dispute and makes either a report about the relevant data or a recommendation about how the dispute might be resolved. (fact-finding hearing are formal presentations of each side's case to the fact-finder & fact-finding hearings are held in public) |
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Term
| What is court-annexed arbitration? |
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Definition
| mandatory, non-binding arbitration for civil and small claims cases. (court establish guidelines for eligible cases, it is used to reduce case backlog, and arbitrators are attorneys volunteering their time) |
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Term
| What is a summary jury trial? |
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Definition
| a pre-trial proceeding for complex civil cases that are headed for a jury trial where the parties' attorneys present short summaries of their cases to a jury who then returns a consensus, advisory "verdict" (presided over by the judge, attorneys may directly question the jury after they give their advisory verdict, and the attorneys and parties then attempt to negotiate a settlement, with the help of the judge, and aided by the information they received from the jury) |
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Term
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Definition
| summary presentations of a case are made by attorneys for each party to a panel consisting of a neutral advisor (usually a retired judge) and decision-makers for each side (at end of presentations, neutral may make an assessment of strengths and weaknesses of the case, or serve as a mediator & then decision-makers attempt to negotiate a resolution & they are first used in corporate disputes; but can be used in any dispute where the parties agree to it) |
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Term
| What is a settlement special master? |
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Definition
| A court appointed neutral who explores or designs settlement options in complex, class-action cases. (designs all details of a possible settlement plan for the approval of the parties in order to settle pending litigation, may serve as the administrator/case manager of the settlement plan & may function as a mediator (one-text procedure) |
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Term
| What are the roles of courts in ADR? |
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Definition
| 1. provide a context for negotiation, 2. serve as BATNA, 3. provide objective criteria (laws and precedents), 4. resolve disputes when other options fail |
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Term
| What cases should go to court? |
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Definition
| 1. constitutional claims, 2. matters of life and death, 3. issues of liberty, 4. to set a precedent, 5. when power cannot be balanced, 6. when a party is incapable of meaningful participation |
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Term
| Why do people still go to court when ADR makes more sense? |
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Definition
| 1. overestimate their chances of winning, 2. feel they are morally right and cannot compromise, 3. do not want to negotiate face-to-face, 4. want to avoid taking responsibility, 5. gambler's mentality, risk-takers |
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Term
| What is ADR and Due Process? |
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Definition
| Due process of law - our rights and protections guaranteed by law. (right to trial by jury of peers, right to an attorney, right to cross examine) |
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Term
| ARD Laws: What is the ADR Act of 1998? |
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Definition
| requires federal district court to implement a dispute resolution program for civil cases that provides at least one ADR process, and to encourage ADR at any stage |
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Term
| ADR Law: What is the ADR Act of 1990 (renewed in 1996)? |
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Definition
| requires federal agencies to adopt dispute resolution procedures for a variety of their functions (regulating, enforcement, rule-making, personnel matters) |
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Term
| ADR Law: What is the civil justice reform act of 1990? |
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Definition
| requires every federal district court to implement a "civil justice expense and delay reduction plan"; authorized referrals to ADR |
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Term
| ADR Law: what is the uniform mediation act of 2001? |
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Definition
| this a draft of uniform standards for mediation laws for all states (pending adoption) |
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Term
| ADR Law: What are the Indiana ADR Rules of 1997? |
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Definition
| Indiana recognizes the following ADR methods: settlement negotiation, arbitration, mediation, conciliation, facilitation, mini-trials, summary jury trials, private judges, convening and/or conflict assessment, neutral evaluation, fact-finding, multi-door case allocation and negotiated rule-making. (governs mediation, arbitration, mini-trials, summary jury trials and private judges. also includes qualifications for mediators and discipline, confidentiality, procedures, and discovery rules) |
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Term
| What is a multi-door courthouse? |
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Definition
| 1. all dispute resolution processes are available for all disputes filed in court, 2. particular types of cases are assigned to particular processes by court screening clerks, 3. goal is more effective and efficient dispute resolution. (institutionalization: incorporating ADR processes into the normal way that the justice system resolves disputes & ADR no longer an alternative to court...it is court) |
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Term
| Who does the multi-door courthouse take referrals from and to? |
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Definition
| From: citizens, prosecutor, schools, police, social services, community agencies, etc. Central intake, diagnosis and referral. Referrals to: mediation, arbitration, mini-trials, private judge, adjudication, social services, government agency, etc. |
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Term
| What is a non-court hybrid process? |
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Definition
| Ombudsman: a person appointed to hear complaints and/or grievances, conduct independent fact-finding investigations, help resolve disputes and/or make suggestions on the best way to resolve disputes. (can serve as case process screener, referral agent, dispute process designer, or neutral third party, it is a person/staff or office, it is best described as an informal complaint and dispute manager, they are usually outside the regular chain of command, although they are considered to be management) |
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Term
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Definition
| an appointed public official (city, state, federal) whose purpose is to correct abuses of public administration, and to help citizens "cut through" government bureaucracy. |
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Term
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Definition
| An employee of a private company or organization whose purpose is to help resolve work-related and/or customer disputes. (processes used; information counseling, referral, mediation. can make policy recommendations to management. the purpose of ombuds are: to improve internal morale, increase operating efficiency, improve corporate image, and provide a forum for resolving conflicts) |
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Term
| What are possible client goals? |
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Definition
| Minimize costs, speed, privacy, maintain relationship, vindication, neutral opinion/assessment, set precedent, minimize/maximize recovery. |
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Term
| What are possible impediments to settlement? |
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Definition
| poor communication, need to express emotion, differing views of facts and laws, defending an important principle, constituent pressure, multiple parties, differing lawyer/client interests, jackpot syndrome |
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Term
| What is the process selection with ADR and courts? |
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Definition
| Rule of presumptive mediation: mediation should be the first procedure tried, absent compelling reasons to the contrary. Other factors to consider: relationship between disputants, nature of dispute (right-based? interest-based?), amount at stake, speed and cost, power relationship between parties, relief sought (apology? information? vending emotion?) |
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Term
| What are the basic principles of the Dispute System Design? |
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Definition
| 1. build in consultation before, feedback after, 2. put the focus on interests, 3. build in 'loop-backs' to negotiation, 4. provide low-cost rights and power back-ups, 5. arrange procedures in a low-to-high cost sequence, 6. provide the necessary motivation, skills and resources (training, handbooks, etc.) |
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Term
| What are prevention and interest-based procedures? |
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Definition
| Prevention procedures: 1. notification and/or consultation step (before) [notification - announce intended action, consultation - discuss initial problem] Post dispute analysis and feedback (after) [evaluation, formal review of grievances; post-dispute interview] Interest-based procedures: negotiation step, mediation step, and/or both |
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Term
| What are loop-back procedures and low-cost back-up procedures? |
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Definition
| Loop-back processes (non-binding; return to negotiation): advisory arbitration, mini-trial, summary jury trial, neutral expert opinion, cooling-off period (no action taken for a period of time by either side) Low-cost back-up processes (binding): arbitration in any form, private judge |
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Term
| What are the four stages of the dispute design system? |
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Definition
| 1. Diagnosis: interview sample of employees at all levels of organization about current process, compare current system with design principles. 2. Design: follow six principles of DSD, 3. Implementation: pilot project?, develop necessary forms, lists of neutrals, etc., design and conduct necessary training, address staffing needs, 4. exit, evaluation, and diffusion: designer evaluates efforts, designer exits |
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Term
| What are the concerns of the dispute system design model? |
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Definition
| 1. Designer as "expert": mistake if you don't involve stakeholders in design of process, 2. reliance on linear approach: mistake if you focus on resolving individual disputes rather than the underlying conflict, 3. Not enough emphasis on prevention: mistake if focus is simply on resolving disputes rather than preventing them, 4. failure to consider organizational dynamics: mistake if you do not address issues such as - resistance to chance, incentive and reward structures, change in staff roles |
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Term
| What are public disputes? |
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Definition
| A dispute involving an issue of public concern that involves one ore more levels of government and one or more community groups. (these controversies affect members of the public beyond the primary negotiators & ex. are: a proposed project, an application of a regulation, a public policy) |
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Term
| What are the characteristics of public disputes? |
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Definition
| multiple parties, varying levels of expertise, different forms of power, lack of continuing relationships, different decision-making procedures, unequal accountability, no formal guidelines, influence of government regulations, broad range of issues (new issues emerge), importance of technical information, strongly held values |
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Term
| What is the spiral of unmanaged conflict? |
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Definition
| problem emerges, sides form, positions harden, communication stops, resources are committed, conflict goes outside community, perceptions become distorted, sense of crises emerges and outcomes vary (violence, lawsuit or court injunction, civil disobedience, remonstrance) |
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Term
| What are the stages that characterize multi-lateral negotiations? |
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Definition
| 1. pre-negotiation: who will attend, coalitions, roles, agenda, 2. actual negotiation: chair, agenda, gather info, consider all options, manage conflict, 3. managing the argument: select best solution, develop implementation plan, evaluate process |
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Term
| What are public participation options? |
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Definition
| 1. authoritative decision: decision makers decide with minimal or no public input, 2. public hearing: hearing held for public comment on proposed action at public meeting, late in decision-making process, 3. public forum/involvement: opportunity for education, dialogue and input from public regarding a proposed action, 4. stakeholders directly negotiate a policy recommendation (with a mediator) which is then forwarded to decision makers for action, 5. stakeholder decision making: stakeholders directly negotiate an agreement (with help of mediator) which they have the authority to implement |
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Term
| What is environmental mediation? |
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Definition
| A stakeholder recommendation process involving all interest parties involved in a dispute about an environmental issue (stakeholders meet face-to-face and attempt to reach a consensus agreement with the help of a mediator & the consensus agreement is put into writing and given as a recommendation to those who have decision making authority) |
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Term
| What are the unique factors of environmental disputes? |
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Definition
| long-term implications; nature, boundaries, participants, cost are difficult to determine; technically complex; emotionally charged; conflict is often over personal values; implementation of agreement is difficult; time issue |
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Term
| What are the difference between environmental and inter-personal disputes? |
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Definition
| public is involved; much work is done before the first meeting; much work is done 'away from the table'; more 'up front' process discussion and education; more complexity: interests, issues, logistics, etc.,; wide variance in parties' negotiation abilities; more uncertainty in determining BATNA, costs, technical info, political influences; often a long-term effort |
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Term
| What are the categories of environmental cases? |
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Definition
| Enforcement: cases when someone questions a party's compliance with a state or federal law pertaining to a environment standard....Permitting: cases that involved disputes over the panned construction of new facilities |
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Term
| What are public participation terms? |
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Definition
| Consensus: this is a process which a group makes a decision, without voting, that all members can support; it is a problem solving approach that involves: joint definition of problem, selection of issues to be resolved, identification of interests of all stakeholders, generation of settlement options, identifying best option. Consensus-based processes: any collaborative decision making process that uses a mediator to help parties solve their problem |
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Term
| What is convening and its tasks? |
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Definition
| term given to the tasks associated with implementing a consensus-based process: Convener - person who performs convening tasks (either a hired neutral third party or agency staff member) Convener tasks: conflict assessment, building the table, process design |
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Term
| What is notice and comment? |
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Definition
| the traditional process that federal agencies follow when promulgating (developing and adopting) a federal regulation. Steps of process: an issue of public safety or concern emerges; appropriate agency involved; agency staff researches the issue; agency staff drafts a proposal for a new regulation; notice is posted in Federal Register with draft of rule; notice invites parties to send in comments on draft; agency considers comments and re-drafts regulation; agency then adopts or rejects proposed regulation |
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Term
| What is rulemaking regulatory negotiation? (reg/neg) |
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Definition
| A stakeholder recommendation process whereby all of the parties affected by a proposed rule are called to the bargaining table where a mediator helps them seek a consensus agreement on the terms of the proposed rule. (draft of the rule then goes through the normal "notice and comment" process & the main difference is that stakeholders draft rules through direct negotiation instead of the agency staff drafting rule) |
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Term
| ADR Law: What is the negotiated rulemaking act of 1990? |
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Definition
| Federal Law that outlines the following steps: agency selects a rule as a candidate for reg/neg - issue notice in Federal Register of intent to conduct reg/neg, invites interested parties to serve on negotiating committees; agency convenes process and determines membership; agency hires professional mediator/facilitator; groups establishes set of protocols - includes definition of consensuses, ensures agency representatives have decision making authority; once consensuses on rule is reached, follows notice and comment rule |
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Term
| ADR issues: public v. private |
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Definition
| Pros of private nature of ADR: Aids candor, more truthful; more informal to better meet parties' needs; not restrained by court rules. Cons of private nature of ADR: no protection against lying; 'secret deals'; may not protect the public; justice system is public. |
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Term
| ADR issues: Institutionalization |
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Definition
| Multi-door v. alternative to court: [Pros] - provide way to fit forum to the fuss; more efficient and effective system; legitimizes alternatives; courts can provide better control and standards; public funding can be used.....[Cons] - increased bureaucracy, ADR no longer an alternative; should public courts support privatization disputes; due process concerns if mandated; higher taxes if use of public funds; problem of incorrect referrals; widens the net of social control - brings in more cases |
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Term
| ADR Issues - mandatory v. voluntary |
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Definition
| pros of mandating: ADR's in in the public's best interest: more effective, better court efficiency; helps to overcome lack of public awareness; consumer satisfaction due to win-win.....con of mandating: ARD works because it is voluntary; coercing people to do it may cost more - if ADR unsuccessful = wasted time and money; can't be binding; difficulty in determining exceptions |
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Term
| What are mediator qualifications? |
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Definition
| Licensing: a professional organization oversees a licensing procedure that involves - minimum educational qualifications, standardized licensing exam that you must pass, ability to grant license and take license away; Certification: involves certifying or documenting your training ad experience in the subject area, Certification criteria may be defined by a state or organization - describes your educational background, degrees, etc.; trainings you have attended and completed; memberships in professional organizations; actual experience in field |
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