Chapter%204 - Chapter 4: Alternative Dispute Resolution...

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Chapter 4: Alternative Dispute Resolution David Baumer Spring 2003
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Market Alternatives to Litigation From a business perspective, court litigation is too risky and uncertain Alternative Dispute Resolution (ADR) is Quicker, cheaper and much more private In international contracts and in cyberspace, ADR is especially prevalent because of the added uncertainty of operating in those market settings ADR is often divided between negotiations , mediation , and arbitration In reality these three categories tend to blend together
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Negotiations and Settlements Most legal disputes are negotiated and settled Attorneys are trained at skillful negotiations without becoming emotional Settlements, often negotiated by attorneys, are private and not an admission of liability Positions taken during settlement negotiations by each party cannot be used as evidence in court if negotiations break down and the parties go to court Many firms have settled disputes that they should have taken to court
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Structured and Assisted Settlement Negotiations Structured settlement negotiations are designed to give the parties a reality check when a lawsuit is likely These procedures take place in B to B disputes Mini-trials --almost always confidential The parties agree to exchange information Evidence is presented in front of a neutral third party whose decision is non-binding, but influential By having the parties cooperate in constructing the mini- trial often paves the way for a settlement Note that the neutral third party may do some mediation during and after the mini-trial in order to obtain a settlement
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Structured and Assisted Settlement Negotiations Summary Jury Trial Evidence is presented to advisory jurors whose decision is non-binding, unknown to the jurors Evidence is presented without testimony of witnesses In 95% of the cases summary jury trials lead to settlements Corporations can buy their way to the head of the line by renting judges Various ADR streamlining can be used The decision can be confidential
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Chapter%204 - Chapter 4: Alternative Dispute Resolution...

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