Ch+4-Notes-ADR-S10-Tracs - Dr. Deborah Pomeroy BLaw 2361 Ch...

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Dr. Deborah Pomeroy BLaw 2361 Ch 4 - ADR ALTERNATIVE DISPUTE RESOLUTON (ADR = Alternative” to litigation which is “going to court” and all surrounding it, such as discovery, etc.) More than 90% of all cases settle before trial and many of these have settled because they utilized an alternative dispute resolution method ADR can happen before any litigation is begun (case filed) or at any stage —after discovery, for ex. Informal Negotiation: --Parties settle between or among themselves or with their attorneys. Parties can be an active part of the negotiation or it can happen between attorneys. TWO TYPES OF NEGOTIATION: --Adversarial negotiation” Each party seeks to maximize his/her own gain. --Problem-Solving Negotiation: --The parties seek joint gain. Usually called “Collaborative Law”. I. Mediation -- parties still negotiate a settlement (in or out of each other’s presence ) - BUT with the ASSISTANCE of a trained, objective, mediator . --the parties agree to a mediator--often, in business cases, someone w/expertise in the area of dispute. 1
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CHARACTERISTICS : 1-- The mediator cannot impose a decision or agreement on the parties. --once the parties reach an agreement (or contract), it is reduced to writing. --AGREEMENT (MSA = Mediated Settlement Agreement) is signed by both sides--it is enforceable in court and you cannot back out except for extraordinary circumstances. 2-- CONFIDENTIAL (as are most forms of ADR) --everything that happens at a mediation is confidential and cannot be used against the other party at trial—or any other way. --Mediator cannot be called as a witness . --if the parties cannot reach an agreement in mediation, they may try other means of ADR OR may go to Court. --Most jrd REQUIRE a mediation before allowing the case to be set for trial. ADVANTAGES of Mediation 1-- parties maintain their relationship on better terms than they would after lengthy, expensive, acrimonious litigation. --If they must continue to work together—OR want to—mediation or collaborative law (ideally) helps them do this. 2-- Creative solutions—the parties can agree on terms that a court could not or would not order. 3-- Along these lines: the parties make their own decisions, it is not imposed by a third party (judge or jury). 4-- all forms of ADR are LESS expensive and time-consuming than litigation. 2
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This note was uploaded on 09/24/2011 for the course BLAW 2361 taught by Professor Bible during the Spring '08 term at Texas State.

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Ch+4-Notes-ADR-S10-Tracs - Dr. Deborah Pomeroy BLaw 2361 Ch...

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