Alternative Methods of Dispute Resolution,9780766821101

Alternative Methods of Dispute Resolution

by
Edition: 1st
ISBN13: 9780766821101
ISBN10: 0766821102
Format: Paperback
Pub. Date: 2002-08-02
Publisher(s): Cengage Learning
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Summary

Why should paralegals know about ADR? Situations that call for understanding the alternatives to litigation and involve planning and preparing for selecting and executing dispute resolution strategies may arise. Paralegals may represent parties in ADR proceedings before administrative agencies or serve as third party neutrals. This book uncovers the distinguishing factors, advantages and disadvantages of various methods in ADR, and helps legal professionals understand each process to determine and carry out dispute resolution strategies. Each chapter includes examples and issues that give paralegals opportunities to examine potential solutions and develop their reasoning abilities. Judicial options show how the courts handle dispute resolution issues when the outcome is not certain. Web site resources, a glossary, and index provide quick references for locating materials in the book.

Table of Contents

Table of Cases
xiii
Preface xiv
Acknowledgments xix
Introduction The ADR Movement xxii
Part One An Overview of ADR 2(42)
Introduction
3(1)
The Methods of Dispute Resolution
4(24)
Unilateral Action in Dispute Resolution
6(5)
Inaction
7(2)
Acquiescence
9(1)
Self-Help
9(2)
Bilateral Action in Dispute Resolution
11(1)
Negotiation
11(1)
Third-Party Evaluation as a Prelude to Dispute Resolution
12(1)
Early Neutral Evaluation
12(1)
Summary Jury Trial
12(1)
Third-Party Assistance in Dispute Resolution
12(3)
Ombuds
12(1)
Private Mediation
13(1)
Court-Sponsored Mediation
14(1)
Mini-Trial
15(1)
Third-Party Adjudication in Dispute Resolution
15(9)
Private Arbitration including High/Low and Final Offer Arbitration
16(2)
Court-Annexed Arbitration
18(1)
Mediation-Arbitration
19(1)
Litigation
19(1)
Private Judging
20(4)
Comparing Dispute Resolution processes
24(4)
The Participants
28(16)
The Party or Parties
29(2)
Unilateral Action
29(1)
Bilateral Action
29(1)
Third-Parry Evaluation
29(1)
Third-Parry Assistance
30(1)
Third-Parry Adjudication
30(1)
The Attorney
31(2)
The Paralegal
33(3)
The Neutral Third Party
36(1)
The Jury
37(7)
Part Two Unilateral Action in Dispute Resolution 44(36)
Introduction
45(1)
Inaction
46(8)
Inaction as a Dispute Resolution Process
47(2)
Inaction by the Aggrieved Parry
47(2)
Inaction by the Party Who Caused the Grievance
49(1)
The Advantages and Disadvantages of Inaction as a Dispute Resolution Process
49(5)
Acquiescence
54(8)
Acquiescence as a Dispute Resolution Process
55(1)
Acquiescence as an Act
55(1)
Acquiescence as an Omission
55(1)
Differentiating Acquiescence from Negotiation
55(1)
The Advantages and Disadvantages of Acquiescence as a Dispute Resolution Process
56(6)
Self-Help
62(18)
Self-Help as a Dispute Resolution Process
63(10)
Self-Help under Statute
63(2)
Self-Help under Common Law
65(5)
Self-Help as Provided by Contract
70(3)
The Advantages and Disadvantages of Self Help as a Dispute Resolution Process
73(7)
Part Three Bilateral Action in Dispute Resolution 80(38)
Introduction
81(1)
Negotiation
82(36)
Preparing for Negotiation
83(8)
Evaluating the Dispute
83(7)
Preparing the Parties for Their Roles in the Negotiation Process
90(1)
Selecting a Negotiating Strategy
91(5)
Negotiating from a Preconceived Position
93(2)
Negotiating from Interests
95(1)
Executing the Negotiation Strategy: When, Where, and How
96(5)
The Timing
96(1)
The Setting
97(1)
Executing the Strategy
98(3)
Enforcing a Negotiated Agreement
101(1)
Negotiating in Bad Faith
102(4)
The Advantages and Disadvantages of Negotiation as a Dispute Resolution Process
106(12)
Part Four Third-Party Evaluation as a Prelude to Dispute Resolution 118(14)
Introduction
119(1)
Early Neutral Evaluation
120(6)
The Early Neutral Evaluation process
121(1)
The Advantages and Disadvantages of Early Neutral Evaluation as a Dispute Resolution Process
122(4)
Summary Jury Trial
126(6)
The Summary Jury Trial Process
127(1)
The Advantages and Disadvantages of Summary Jury Trial as a Dispute Resolution Process
128(4)
Part Five Third-Party Assistance in Dispute Resolution 132(88)
Introduction
133(1)
Ombuds
134(12)
The Ombuds (Ombudsman)
135(4)
Classical Ombuds
136(1)
Organizational Ombuds
136(2)
Advocate Ombuds
138(1)
The Ombuds Process
139(1)
Ethical and Legal Issues
139(3)
Conflict of Interest
140(1)
Impartiality
141(1)
Privileged Communication
141(1)
The Advantages and Disadvantages of Ombuds as a Dispute Resolution Process
142(4)
Private Mediation
146(34)
What Should a Party Expect at the Mediation
147(1)
Preparing for Private Mediation
147(5)
Selecting the Rules for the Mediation
147(1)
Selecting and Compensating the Mediator
148(1)
Selecting the Timing and the Setting for the Mediation
148(1)
Preparing the Participants for Their Roles in the Mediation Process
149(3)
The Mediation Process
152(2)
Enforceability of the Mediated Agreement
154(4)
Ethical and legal Issues
158(15)
Training, Qualifications, and Certification of Mediators
158(1)
Ethical Rules for Mediators
159(1)
Impartiality, Fairness, and Imbalances in Power and Knowledge
159(4)
Conflict of Interest
163(2)
Confidentiality
165(7)
Mediator's Liability and Immunity
172(1)
The Advantages and Disadvantages of private Mediation as a Dispute Resolution process
173(7)
Court-Sponsored Mediation
180(34)
Court-Sponsored Mediation in the Federal Courts
181(2)
Court-Sponsored Mediation in the State Courts
183(1)
Preparing for Court-Sponsored Mediation
184(1)
The Litigation/Mediation Process
185(12)
Enforceability of the Mediated Agreement
197(5)
Legal and Ethical Issues
202(4)
The Advantages and Disadvantages of Court-Sponsored Mediation
206(8)
Mini-Trial
214(6)
The Mini-Trial Process
215(1)
Selecting the Mini-Trial as an Appropriate Dispute Resolution Process
216(1)
The Advantages and Disadvantages of the Mini-Trial as a Dispute Resolution Process
216(4)
Part Six Third-Party Adjudication in Dispute Resolution 220(110)
Introduction
221(1)
Private Arbitration
222(48)
Private Arbitration as a Dispute Resolution Process
223(6)
The Purpose of Private Arbitration
223(1)
The Rules of Private Arbitration
223(6)
The Private Arbitration Process
229(6)
The Arbitration Agreement
230(1)
Initiating the Arbitration Process
231(1)
The Respondent's Failure to Participate
232(1)
The Prehearing Activities
232(3)
Final Offer, Last Offer, or Baseball Arbitration
235(1)
High/Low or Bounded Arbitration
236(1)
Ethical and Legal Issues
236(27)
Arbitrability
237(1)
Impartiality
238(1)
Denial of Trial by Jury
238(9)
Denial of Access to a Forum to Seek Redress of a Grievance
247(4)
Inability to Withdraw from the Process
251(1)
Lack of Judicial Review
251(12)
The Advantages and Disadvantages of Private Arbitration as a Dispute Resolution Process
263(7)
Court-Annexed Arbitration
270(14)
The Court-Appointed List of Arbitrators
273(1)
The Court-Annexed Arbitration Program
273(3)
Filing of the Complaint and the Referral to Arbitration
274(1)
Pretrial Discovery and the Timing of the Arbitration Hearing
274(1)
Prehearing Statements
274(1)
The Arbitration Hearing
274(2)
The Arbitrator's Award
276(1)
Opportunity for a Trial de novo
276(1)
Comparing Court-Annexed Arbitration Programs
276(2)
Preparing for Court-Annexed Arbitration
278(1)
The Advantages and Disadvantages of Court-Annexed Arbitration as a Dispute Resolution Process
278(6)
Mediation-Arbitration
284(6)
The Mediation-Arbitration (Med-Arb) Process
285(1)
The Advantages and Disadvantages of Mediation-Arbitration as a Dispute Resolution Process
285(5)
Litigation
290(30)
The Litigation Process
291(25)
Pretrial
297(11)
The Trial
308(5)
Execution of the Judgment
313(1)
Appeals
313(3)
The Advantages and Disadvantages of Litigation as a Dispute Resolution Process
316(4)
Private Judging
320(10)
Private Judging as a Matter of Contract
321(1)
The Process
321(1)
Advantages and Disadvantages of the Contractual Form of Private Judging as a Dispute Resolution Process
321(1)
Private Judging as Authorized by Law
322(2)
The Process
323(1)
Advantages and Disadvantages of Court-Appointed Private Judging as a Dispute Resolution Process
323(1)
The Social Implications of Private Judging
324(6)
Part Seven Selecting a Dispute Resolution Strategy 330(51)
Introduction
331(1)
Selecting a Dispute Resolution Process before the Dispute Arises
332(24)
Predispute Arbitration Provision
333(9)
Predispute Mediation Provision
342(1)
The Subtle Impact of Nondispute Resolution Provisions on the Selection of a Dispute Resolution Process
342(14)
Liquidated Damages
342(2)
Repossession
344(2)
Costs and Attorney's Fees
346(2)
Confession of Judgment
348(1)
Choice of Law
348(2)
Choice of Forum
350(6)
Selecting a Dispute Resolution Strategy after the Dispute Arises
356(25)
Creating a Strategy for Resolving the Dispute
357(15)
Preparing to Discuss Dispute Resolution Processes at the Counseling Session
357(4)
Dispute Resolution as a Strategy
361(5)
Assisting the Decision-Making Process with Visual Aids
366(1)
Assessing the Client's Level of Acceptable Risk
367(4)
Is a Nonjudicial Solution Always Appropriate?
371(1)
Preparing for the Process
372(1)
Initiating the Dispute Resolution Plan
372(9)
Selecting the Best Timing for a Dispute Resolution Process
372(1)
Selling a Dispute Resolution Process to the Other Parry
373(1)
Creating the Dispute Resolution Documents
373(8)
Appendix A The Ombudsman Association---Code of Ethics Standards of Practice, Glossary 381(2)
Appendix B Uniform Mediation Act 383(4)
Appendix C Mediation Alternatives to Judicial Action---Florida Statutes title V, chapter 44 387(3)
Appendix D Federal Arbitration Act, USC title 9 390(4)
Appendix E Uniform Arbitration Act 394(8)
Appendix F Excerpt from the American Arbitration Association's Commercial Dispute Resolution Procedures (Arbitration Rules) 402(8)
Appendix G Rules of the United States District Court for the Middle District of Florida---Court Annexed Arbitration 410(4)
Appendix H Local Rules of the United States District Court for the Northern District of California ADR Local Rule Non---Binding Arbitration 414(5)
Appendix I Hawaii Arbitration Rules 419(8)
Appendix J Private Judging---California Constitution, Statute, and Court Rule 427(4)
Glossary 431(6)
Index 437

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