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87765-piy-ch04-01.pdf_119843 - CHAP TER Alternative Dispute...

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alternative dispute resolution (ADR) Encompasses many different methods of dispute resolution other than litigation or trial. CHAPTER 4 Alternative Dispute Resolution LEARNING OBJECTIVES After reading this chapter, you should understand alternative dispute resolution (ADR) options, including the benefits and drawbacks to different methods of dispute resolution. You will know the legal basis for mandatory arbitration, as well as why parties enter into voluntary ADR methods. You will understand current debates regarding the fairness of ADR. Additionally, you should be able to answer the following questions: 1. What are the benefits and drawbacks of ADR as compared to litigation? 2. What legal basis supports the use of ADR rather than litigation? 3. What unique challenges exist in ADR efforts among B2B (business to business), B2C (business to consumer), and B2E (business to employees)? 4. What are the ethical implications of ADR between parties that are unequal in power? Imagine that you’ve been wronged by a supplier, by your employer, or by a business where you are a customer. You’ve correctly determined that you have an actionable legal claim. What are you going to do? You probably won’t run to the courthouse to file a formal complaint to initiate litigation. This is because litigation is very expensive and time consuming. Besides, you may wish to continue doing business with the supplier, employer, or business. Perhaps the matter is of a private nature, and you do not want to engage in a public process to determine the outcome. You would like the dispute to be resolved, but you do not want to engage in public, time- consuming, expensive litigation to do it. A common method of dispute resolution that avoids many of the challenges associated with litigation is alternative dispute resolution. Alternative dispute resolution (ADR) is a term that encompasses many different methods of dispute resolution other than litigation. ADR involves resolving disputes outside of the judicial process, though the judiciary can require parties to participate in specific types of ADR, such as arbitration, for some types of conflicts. Moreover, some ADR methods vest power to resolve the dispute in a neutral party, while other strategies vest that power in the parties themselves. See Figure 4.1 for a continuum of different ADR methods based on where power to solve the dispute is vested. Personal PDF created exclusively for Wendy Ruan ([email protected])
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FIGURE 4.1 A Continuum of Different ADR Methods Source: Adapted from New York State Unified Court System, http://www.nycourts.gov/ip/adr/images/continuum2.jpg. Common methods of ADR include negotiation, mediation, and arbitration. Lesser used methods of ADR include minitrials, hybrid forms of mediation-arbitration (with elements of both), and collaborative goal-oriented processes.
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87765-piy-ch04-01.pdf_119843 - CHAP TER Alternative Dispute...

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