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Unformatted text preview: Chapter 3
Alternative Dispute Resolution Searching for Alternative to Litigaion Mediation vs. Arbitration Alternative Dispute Resolution aka ADR How to get a resolve a case without going to court. Negotiation The parties come together informally with or without attorneys. No third parties are involved. Can occur during litigation (settlement week) Mediation One of the oldest forms of ADR. In mediation, the parties themselves attempt to negotiate a settlement with the assistance of a neutral third party. Mediator does not need to be an attorney (sometimes better not to be one) Advantages of Mediation 1. Fewer procedural rules 2. Tailored to fit needs of the parties 3. Usually matter are settled quicker 4. Reduces bitterness because parties fashion their own settlement. 5.Mediator is usually selected by the parties. Disadvantages of Mediation Usually a mediator charges a fees. Informality and lack of judge or referee. Can fail if parties don't follow thru with agreement. Arbitration This process involves the settling of a dispute by an impartial third party who renders a decision. Third party involved is called mediator. Key difference from other ADR methods is decision may be binding. The Arbitration Process Question: Binding vs. Non-binding Submission = act of referring case to arbitrator. Can be with statement of facts and or law. Arbitration hearing Very similar to a trial . Can be tailored to needs of case. Can be long and drawn out process. Sometimes continued for long time. Arbitration Award Final decision is called an award. Usually arbitrator must issue decision with 30 days of hearing. Role of Courts usually limited after award. Employment setting. Setting Aside Award Usually losing party may appeal to court and or winning party can go to court to enforce award. Defects in the process
Can be reason to set aside award if: 1. Corruption, fraud or undue influence involved. 2. Arbitrator showed bias or corruption 3. Arbitrator refused to continue hearing or to accept evidence or prejudiced parties. 4. Arbitrator exceed his powers or failed to make mutual, final definite award Disadvantages of Arbitration Result can be unpredictable. Some would rather go through legal system. No written opinions for future use. Arbitrator must go by the rules agreed to by the parties. Can be very expensive. Generally no discover. Court ADR Some courts have mediation program. Both at Trial and Appellate level. Usually works well in civil cases not involving domestic relations. When all else fails file a lawsuit ! ...
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This note was uploaded on 09/30/2008 for the course BULW 2700 taught by Professor Mmcfarland during the Fall '08 term at Shawnee.
- Fall '08