Dispute Resolution Outline

Dispute Resolution Outline - Dispute Resolution Outline...

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Dispute Resolution Outline Professor Gafni: Fall 2007 I. Course Overview (GSRC, Chapter 1, pp 3-12) a. The Process i. Most Common = Negotiation 1. Advantage of allowing parties themselves to control the process and the solution 2. If can’t settle themselves then bring in a 3 rd party cede some control over the proves but not necessarily the solution ii. Critical distinguishing factor among 3 rd party processes = whether the neutral has power to impose a solution or simply to assist the disputants in arriving at their own solutions iii. 3 primary process: Negotiation , Mediation , and Adjudication many hybrids of these: 1. A + N = minitrial 2. Arbitration + A = rent-a-judge or private judging 3. M + Arbitration = med-arb 4. Others: ombudsman , neutral expert , early neutral evaluator , summary jury trial iv. Ury, Brett and Goldberg – book referred to throughout text ways of analyzing and providing a systematic mechanism for dealing w/ a stream of disputes in a particular setting distinguish among processes based on whether aim is to 1. Reconcile Interests 2. Rights-Focused 3. Power Procedures v. Dispute Resolution Designers might juxtapose various kinds of processes but should keep in mind that, “in general, reconciling interests is less costly than determining who is right, which in turn is less costly than determining who is more powerful.” b. Sources and Goals of the Alternative Dispute Resolution Movement i. Negotiation : about 1/10 th of the civil cases filed in US courts are disposed of by trial and another 1/5 th by some sort of pre-trial adjudication ii. Arbitration : favored by law in most American jurisdictions for more than 60 years iii. Mediation : central means of conflict management in small-scale societies across the world and commonplace in this country w/I cohesive immigrant or religious groups as early as New England professional mediators came on for collective bargaining disputes --? Cts. also encourages in minor crim. or family disputes iv. 1976 Pound Conference started shift/ task force to implement it v. Justifications: 1. Lower court caseload and expenses 2. Reduce the parties’ expenses and time 3. Provide speedy settlement of those disputes that were disruptive of the community or the lives of the parties’ families 4. Improve public satisfaction w/ the justice system 5. Encourage resolutions that are suited to parties’ needs 6. Increase voluntary compliance w/ resolutions 7. Restore influence of neighborhood and community values and cohesiveness of communities 8. Provide accessible forums to people w/ disputes, and 9. Teach public to try more effective processes than violence or litigation for 1
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settling disputes vi. Critics: give force to the values embodied in authoritative texts such as the Const. and statutes this is what the ct’s job is, not just being peace among parties vii. Lawmakers who support ADR added statutory provisions to ensure the fairness of ADR outcomes; to provide guidelines for excluding certain cases f/ dispute resolution
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This note was uploaded on 04/03/2008 for the course LAW 000 taught by Professor Ohare during the Fall '07 term at Villanova.

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Dispute Resolution Outline - Dispute Resolution Outline...

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