518-4 ADRProcedures


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CHAPTER FOUR ALTERNATIVE DISPUTE RESOLUTION PROCEDURES Ethical Consideration Introduction Litigation is stressful Advocates of Alternative Dispute Resolution One basic goal: The speedy and just determination of the dispute at a reasonable cost to both parties. The judiciary is a strong advocate of ADR Lawsuits take years and are usually settled on the court house steps The business sector is a strong proponent of ADR Maintaining a business relationship in litigation is difficult if not impossible The public has an interest in reducing the judiciary’s case load Negotiation, Conciliation, and Mediation Negotiation Two or more persons meet to discuss their difference and attempt to arrive at an acceptable settlement All parties should win in a successful negotiation Negotiation is a part of all ADR Filing a lawsuit may be a negotiating technique Negotiation Skills A necessary part of business skills When Negotiation Occurs May occur at any stage of the dispute May occur after trial Most lawsuits are settled through negotiation Conciliation Whenever a third party successfully gets conflicting parties to accept an agreement A conciliator does not take an active part in negotiation
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Attempts to limit passions and negative rhetoric Mediation An impartial third person, called a mediator, tries to bring the parties to a resolution of their dispute Mediator may be discharged at any time by either party Early mediation may avoid polarization May be a first step followed by arbitration or litigation Mediation does not work if the problem is intractable or the parties unreasonable Judges use mediation Mediation may be integrated with court process Judge may mediate at the pretrial conference Arbitration The parties to a dispute submit the dispute to an impartial third person called an arbitrator Arbitrator may be a specialist Comparisons Between Arbitration and the Judicial System Financial Costs In some ways both are high. The cost of a jury trial may average over $10,000/day Attorneys’ fees should be lower with arbitration because of limited prehearing procedures Time Costs Reasons for Time Lag Unless the judge moves the case along it stalls until the plaintiff’s attorney or the court sets a trial date Polarization of the parties ADR Time Periods A matter may be finalized in 160 days Privacy Factor Litigation files are public; trials are open to the public This is an issue when trade secrets and other confidential information is involved
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  • Spring '09
  • Parry
  • Arbitration, Arbitration Contractual Arbitration, ADR Hybrid Mediation and Arbitration, Arbitration Court-mandated arbitration

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