Alternative Dispute Resolution in a Nutshell
Author:
Nolan-Haley, Jacqueline
Edition:
4th
Copyright Date:
2013
27 chapters
have results for alternative dispute resolution
Chapter 1. Introduction 31 results (showing 5 best matches)
- The Administrative Dispute Resolution Act of 1990, 5 U.S.C.A. § 581, extended in scope by the Administrative Dispute Resolution Act of 1996, requires all federal agencies to develop policies on the voluntary use of alternative dispute resolution. The purpose of the Act is “to offer a prompt, expert, and inexpensive means of resolving disputes as an alternative to litigation in Federal courts.” In its findings, Congress stated that “the availability of a wide range of dispute resolution procedures, and an increased understanding of the most effective use of such procedures, will enhance the operation of the Government and better serve the public.”
- The chief purpose of this book is to disabuse you of the “one size fits all” litigation mentality and to help you understand and appreciate that more creative problem-solving is available through alternative dispute resolution (ADR) processes. ADR is an umbrella term that refers generally to alternatives to the court adjudication of disputes. These include processes such as negotiation, mediation, arbitration, mini-trial and summary jury trial. ADR is also known as “appropriate dispute resolution” and in some international contexts such as the International Chamber of Commerce, it is understood as “amicable dispute resolution.” ADR can be further distinguished between private contractual processes and public processes. Even though some of the “alternatives” such as negotiation, mediation and arbitration, have been practiced for hundreds of years, they have achieved a new familiarity and greater usage today in the United States as well as in the international arena.
- Today, most state and federal bar associations have ADR committees. Law schools have gradually been adding ADR to the curriculum and now the majority of law schools offer one or more ADR courses or specialized courses in areas such as mediation and negotiation. Some schools offer graduate and certificate programs in dispute resolution. Several law reviews are devoted solely to the study of alternative dispute resolution. Similar ADR curricular developments have occurred in graduate and business schools.
- III. BACKGROUND OF THE ALTERNATIVE DISPUTE RESOLUTION MOVEMENT
- Federal ADR legislation has expanded significantly. The Civil Justice Reform Act of 1990, 28 U.S.C.A. § 1 required every federal district court to develop a “civil justice expense and delay reduction plan” (EDRP) to help streamline dockets. This statute was amended by the Alternative Dispute Resolution Act of 1998, 28 U.S.C.A. § 651 et seq., which required that all federal courts establish at least one ADR program. The Negotiated Rulemaking Act of 1990, 5 U.S.C.A. § 561, authorized the use of negotiated rulemaking as an alternative to adversarial rulemaking in federal agencies. Under the scheme established by the Act, parties who will be significantly affected by an agency rule, participate in the development of the rule. This Act was reauthorized in the Administrative Dispute Resolution Act of 1996, 5 U.S.C.A. §§ 571–584, Pub. L. No. 104–320, 110 Stat. 3870.
- Open Chapter
Chapter 5. Dispute Resolution in the Court System 23 results (showing 5 best matches)
- The 1993 amendments to Rule 16 expanded the authority of federal courts to explore settlement possibilities through the SJT. According to the Revised Drafter’s notes: “Even if a case cannot immediately be settled, the judge and attorneys can explore possible use of alternative procedures such as … summary jury trials … that can lead to consensual resolution of the dispute without a full trial on the merits.” The extent to which courts will do this is unclear, however, given the omission of summary jury trials from the list of permissible mandatory dispute resolution processes in the Alternative Dispute Resolution Act of 1998, 28 U.S.C.A. Sec. 652(a):
- Any district court that elects to require the use of alternative dispute resolution in certain cases
- The Summary Jury Trial and Other Alternative Methods of Dispute Resolution: A Report to the Judicial Conference of the United States, Committee on the Operation of the Jury System
- The Summary Jury Trial and Other Methods of Alternative Dispute Resolution: Some Cautionary Observations
- Constitutional Gravity: A Unitary Theory of Alternative Dispute Resolution and Public Civil Justice
- Open Chapter
Appendix L. Task Force on Alternative Dispute Resolution in Employment, Due Process Protocol 7 results (showing 5 best matches)
- The Task Force on Alternative Dispute Resolution in Employment was composed of representatives of the American Arbitration Association, American Bar Association, American Civil Liberties Union, Federal Mediation and Conciliation Service, National Academy of Arbitrators, National Employment Lawyers Association, and the Society of Professionals in Dispute Resolution.
- DUE PROCESS PROTOCOL FOR MEDIATION AND ARBITRATION OF STATUTORY DISPUTES ARISING OUT OF THE EMPLOYMENT RELATIONSHIP
- RE- OR POST-DISPUTE ARBITRATION
- The Task Force takes no position on the timing of agreements to mediate and/or arbitrate statutory employment disputes, though it agrees that such agreements be knowingly made. The focus of this Protocol is on standards of exemplary due process.
- determine the close of the hearing and procedures for post-hearing submissions, and issue an award resolving the submitted dispute.
- Open Chapter
Chapter 3. Mediation 105 results (showing 5 best matches)
- National Institute of Dispute Resolution (NIDR)
- is a nonprofit initiative of 500 general counsel of major corporations, leading law firms and prominent legal academics whose mission is to install alternative dispute resolution (ADR) into the mainstream of legal practice.
- (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission.
- In the mediation process, an impartial third party assists disputing parties in negotiating towards the resolution of their conflict. The disputing parties are responsible for deciding the outcome of the resolution. The core activities in this process are the information exchange and bargaining between the parties. These activities may be carried out in joint sessions, in private meetings known as caucuses or in a combination of both.
- A contract approach is also adopted in the Mediation Procedures of the International Institute for Conflict Prevention & Resolution (formerly the CPR Institute for Dispute Resolution) (April 1998). The model procedures, which can be incorporated by reference into a business agreement as well as into a post-dispute submission agreement, provide in relevant part:
- Open Chapter
Appendix G. Ethical Standards of Professional Responsibility for the Society of Professionals in Dispute Resolution 13 results (showing 5 best matches)
- and a high level of competency among SPIDR members, including honesty, integrity, impartiality, and the exercise of good judgment in their dispute resolution efforts. It is hoped that this document also will help to (1) define the profession of dispute resolution, (2) educate the public and (3) inform users of dispute resolution services.
- The use of more than one dispute resolution procedure by the same neutral involves additional responsibilities. Where the use of more than one procedure is initially contemplated, the neutral must take care at the outset to advise the parties of the nature of the procedures and the consequences of revealing information during any one procedure which the neutral may later use for decision making or may share with another decision maker. Where the use of more than one procedure is contemplated after the initiation of the dispute resolution process, the neutral must explain the consequences and afford the parties an opportunity to select another neutral for the subsequent procedures. It is also incumbent upon the neutral to advise the parties of the transition from one dispute resolution process to another.
- This material was originally published in 1986 by the Society of Professionals in Dispute Resolution (SPIDR). Reproduced with permission from the Association for Conflict Resolution (ACR), www.ACRnet.org.
- The Society for Professionals in Dispute Resolution was established in 1973 to promote the peaceful resolution of disputes. Members of the society believe that resolving disputes through negotiation, mediation, arbitration and other neutral interventions can be of great benefit to disputing parties and to society. In 1983 the SPIDR Board charged the Ethics Committee with the task of developing ethical standards of professional responsibility. The Committee membership represented all the various sectors and disciplines within SPIDR. This document, adopted by the Board on June 2, 1986 is the result of that charge.
- It is recognized that SPIDR members and associates resolve disputes in various sectors within the disciplines of dispute resolution and have their own codes of professional conduct. These standards have been developed as general guidelines of practice for neutral disciplines represented in the SPIDR membership. Ethical considerations relevant to some, but not to all, of these disciplines are not covered by these standards.
- Open Chapter
Index 14 results (showing 5 best matches)
- (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
- Open Chapter
Chapter 4. Arbitration 74 results (showing 5 best matches)
- Alternative Dispute Resolution and the Public Interest: The Arbitration Experience
- As arbitration practice has expanded dramatically, there has been a growing interest in the ethical obligations of organizations that provide arbitration services. Responding to the need for guidance, the CPR–Georgetown Commission on Ethics and Standards of Practice in alternative dispute resolution (ADR) published standards for ADR Provider Organizations (including arbitration providers) in 2002. The standards are available at
- Arbitration is the most formalized alternative to the court adjudication of disputes and enjoys a dominant position in the American legal system. In the arbitration process, disputing parties present their case to one or more impartial third persons who are empowered to render a decision. Pragmatic and policy considerations have led courts and legislatures to endorse arbitration as the preferred process in resolving a wide range of disputes. As a result, arbitration has been transformed today into a flexible adjudicatory process, operating both in the mandatory, public context, as well as in voluntary, private settings.
- As this text was going to press, legislation was re-introduced into Congress that would prohibit certain mandatory arbitration provisions. Entitled the Arbitration Fairness Act of 2013, the proposed legislation amends the Federal Arbitration Act by adding a new chapter that invalidates agreements requiring the arbitration of consumer, employment, antitrust and civil rights disputes made before the dispute arises. The underlying rationale for the legislation is that arbitration is an acceptable alternative to court adjudication only when consent to arbitration is voluntary and occurs after the dispute has arisen.
- makes it clear that the FAA is not simply a quick fix dispute resolution vehicle but rather a mechanism for the enforcement of private arbitration agreements:
- Open Chapter
Acknowledgments 3 results
- Task Force on Alternative Dispute Resolution in Employment, Due Process Protocol
- American Bar Association (ABA), Model Rules of Professional Conduct, and Resolution on Mediation and the Unauthorized Practice of Law. Copyright by the ABA. All rights reserved. Reprinted by permission of the American Bar Association.
- Code of Ethics for Arbitrators in Commercial Disputes (2004)
- Open Chapter
List of Appendices 4 results
- L. Task Force on Alternative Dispute Resolution in Employment, Due Process Protocol
- F. Mandated Participation and Settlement Coercion: Dispute Resolution as It Relates to the Courts
- G. Ethical Standards of Professional Responsibility for the Society of Professionals in Dispute Resolution
- M. The Code of Ethics for Arbitrators in Commercial Disputes (2004)
- Open Chapter
Outline 11 results (showing 5 best matches)
Title Page 2 results
Appendix F. Mandated Participation and Settlement Coercion: Dispute Resolution as It Relates to the Courts 12 results (showing 5 best matches)
- Some jurisdictions by statute, rule of procedure, or court rule have required participation in dispute resolution processes such as mediation, summary jury trials, and court-annexed arbitration. The imposition of compulsory participation reflects views by legislatures or courts that benefits accrue to the courts, parties, and/or public when the use of dispute resolution procedures is not restricted to cases in which all parties agree to participate. As the use of mandatory dispute resolution has expanded, a variety of public policy issues have emerged.
- Mandatory dispute resolution raises different issues than dispute resolution chosen by the parties and should be imposed only when the following criteria are met:
- The Committee uses the term settlement “coercion” to refer to the requirements added to compulsory dispute resolution processes (as distinguished from the settlement pressure normally exerted during litigation even when dispute resolution is not mandatory by the cost of litigation, the desire to avoid publicity, and other forces.) (See p.
- This material was originally published in 1991 by the Society of Professionals in Dispute Resolution (SPIDR). Reproduced with permission from the Association for Conflict Resolution (ACR), www.ACRnet.org.
- 1. Plans for mandated dispute resolution programs should be formed in consultation with judges, other court officials, lawyers, and other dispute resolution professionals, as well as representatives of the public. Mandatory programs should be monitored to insure that they constitute an improvement over existing procedures, using criteria listed in Recommendation 1. The programs should be altered or discontinued when appropriate. (See Recommendation 5.)
- Open Chapter
Chapter 6. Hybrid Dispute Resolution Procedures 36 results (showing 5 best matches)
- The dramatic growth of cyberspace commerce has brought about increased interest in the development of online dispute resolution (ODR), also referred to as EDR (electronic dispute resolution). ODR provides for virtual communications between parties in cyberspace and thus eliminates the transaction costs of traditional dispute resolution, whether that means going to courts in different jurisdictions to initiate lawsuits or participating in traditional ADR with face-to-face meetings.
- National Institute for Dispute Resolution,
- Early use of ODR was limited to resolution of disputes that arose online. Often, these disputes would be between parties from different countries so that court dispute resolution or face-to-face ADR processes would be difficult to achieve. As ODR became successful in resolving online disputes, it began to be used in offline disputes as an aid to mediators, arbitrators and other neutrals. Today, ODR includes traditional ADR processes that incorporate information technology such as the Internet, websites, e-mail communications, and streaming media, as well as more innovative techniques such as double blind bidding and auctions. Disputes that may be appropriate for resolution through ODR include those that are created by the Internet such as domain names, as well as those related to commercial transactions that use the Internet.
- An ombudsperson is a neutral individual employed by a company to assist employees in resolving workplace disputes. Also referred to as an ombuds or ombudsman, these individuals hear complaints, engage in fact finding, and generally promote the resolution of disputes through informal methods such as mediation and counseling.
- Construction Conflicts and Dispute Review Boards: Attitudes and Opinions of Construction Industry Members
- Open Chapter
Appendix M. The Code of Ethics for Arbitrators in Commercial Disputes 12 results (showing 5 best matches)
- of settlement or the use of mediation, or other dispute resolution processes, an arbitrator should not exert pressure on any party to settle or to utilize other dispute resolution processes. An arbitrator should not be present or otherwise participate in settlement discussions or act as a mediator unless requested to do so by all parties.
- F. An arbitrator should conduct the arbitration process so as to advance the fair and efficient resolution of the matters submitted for decision. An arbitrator should make all reasonable efforts to prevent delaying tactics, harassment of parties or other participants, or other abuse or disruption of the arbitration process.
- The Code of Ethics for Arbitrators in Commercial Disputes was originally prepared in 1977 by a joint committee consisting of a special committee of the American Arbitration Association and a special committee of the American Bar Association. The Code was revised in 2003 by an ABA Task Force and special committee of the AAA.
- The use of arbitration to resolve a wide variety of disputes has grown extensively and forms a significant part of the system of justice on which our society relies for a fair determination of legal rights. Persons who act as arbitrators therefore undertake serious responsibilities to the public, as well as to the parties. Those responsibilities include important ethical obligations.
- Few cases of unethical behavior by commercial arbitrators have arisen. Nevertheless, this Code sets forth generally accepted standards of ethical conduct for the guidance of arbitrators and parties in commercial disputes, in the hope of contributing to the maintenance of high standards and continued confidence in the process of arbitration.
- Open Chapter
Appendix D. The Model Standards of Conduct for Mediators 9 results (showing 5 best matches)
- Note: The updated version of the Model Standards of Conduct for Mediators (2005) is the result of a collaborative effort between the Association for Conflict Resolution (ACR), the Section of Dispute Resolution of the American Bar Association (ABA), and the American Arbitration Association (AAA). The Model Standards were originally drafted and adopted in 1994 by the ABA Section of Dispute Resolution, the AAA, and the Society of Professionals in Dispute Resolution (or SPIDR which merged with two other organizations in 2001 to form ACR).
- This material was published in 2005 by the Association for Conflict Resolution (ACR), the Section of Dispute Resolution of the American Bar Association (ABA), and the American Arbitration Association (AAA). It is reproduced here by permission of the Association for Conflict Resolution (ACR), www.acrnet.org.
- 6. A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation.
- 8. A mediator shall not undertake an additional dispute resolution role in the same matter without the consent of the parties. Before providing such service, a mediator shall inform the parties of the implications of the change in process and obtain their consent to the change. A mediator who undertakes such role assumes different duties and responsibilities that may be governed by other standards.
- 2. A mediator should not communicate to any non-participant information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution.
- Open Chapter
Preface 1 result
- edition of this book reflects ongoing developments in the constantly expanding field of alternative dispute resolution. The Supreme Court’s arbitration jurisprudence with class action and preemption issues continues to develop. We see consistent judicial support for broad enforceability of arbitration agreements in employment and consumer contracts. Mediation is gaining ground and displacing arbitration as the ADR process of choice and courts generally give deferential judicial review to mediated agreements.
- Open Chapter
Chapter 2. Negotiation 29 results (showing 5 best matches)
- Negotiation differs from other methods of dispute resolution in the degree of autonomy experienced by the disputing parties. In negotiation, parties attempt to reach agreement without the intervention of third parties such as judges, arbitrators or mediators. Parties also have the power to decide process norms in negotiation.
- Negotiations may be classified in two categories: dispute and deal-making or transactional negotiations. negotiation involves parties planning for a future event such as licensing a copyright agreement, drafting an employment contract or a long-term lease or other similar long-term goals. In a dispute negotiation the parties are in conflict over an event that has occurred—the contract that was breached, the patent that was infringed, and the personal injury that was sustained. The issues in dispute negotiation are often susceptible to resolution by a third party such as a judge or arbitrator, while in deal-making negotiation, the issues are resolved by the parties themselves. It is not surprising then that dispute negotiation is often a prelude to litigation between the parties.
- , 6 No. 1 Disp. Resol. Mag. 11 (ABA Section of Dispute Resolution) (Fall 1999).
- The Handbook of Dispute Resolution
- The importance of negotiation skills in the dispute resolution universe cannot be overemphasized. Negotiation is the foundational skill for successful implementation of many ADR processes, such as mediation, the mini-trial and summary jury trial. A theoretical and practical understanding of negotiation enhances the lawyer’s effectiveness in these procedures. Mediation, an extension of negotiation, is a process in which a neutral third party, the mediator, helps negotiating parties to reach a mutually acceptable agreement. Mediators who do not understand the dynamics of negotiation are of dubious assistance to the parties in the mediation process. The same is true for lawyers who represent clients in a
- Open Chapter
Appendix E. American Arbitration Association Commercial Arbitration Rules & Mediation Procedures (2009) 49 results (showing 5 best matches)
- If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure.
- (iv) The mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a satisfactory resolution of their dispute. Subject to the discretion of the mediator, the mediator may make oral or written recommendations for settlement to a party privately or, if the parties agree, to all parties jointly.
- b) By a written or verbal declaration of the mediator to the effect that further efforts at mediation would not contribute to a resolution of the parties’ dispute; or
- (b) The arbitrator, exercising his or her discretion, shall conduct the proceedings with a view to expediting the resolution of the dispute and may direct the order of proof, bifurcate proceedings and direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case.
- (d) to consider, with the parties, whether mediation or other non-adjudicative methods of dispute resolution might be appropriate.
- Open Chapter
Appendix C. Model Standards of Practice for Family and Divorce Mediation (August 2000) 13 results (showing 5 best matches)
- These standards were developed by the Symposium on Standards of Practice, which represents a collaborative effort of the Association of Family and Conciliation Courts (AFCC), the Family Law Section of the American Bar Association, the National Council of Dispute Resolution Organizations, as well as prominent individuals in the mediation field. They represent the family mediation community’s definition of the role of mediation in the dispute resolution system in the twenty-first century and are intended to create a unified set of standards that will replace existing ones, including the ABA Standards of Practice for Lawyer Mediators in Family Disputes (1984).
- Family and divorce mediation (“family mediation” or “mediation”) is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by promoting the participants’ voluntary agreement. The family mediator assists communication, encourages understanding and focuses the participants on their individual and common interests. The family mediator works with the participants to explore options, make decisions and reach their own agreements.
- 3. reduce the economic and emotional costs associated with the resolution of family disputes.
- E. With the agreement of the participants, the mediator may document the participants’ resolution of their dispute. The mediator should inform the participants that any agreement should be reviewed by an independent attorney before it is signed.
- 5. encouragement to the participants to develop appropriate dispute resolution mechanisms to facilitate future revisions of the parenting plan.
- Open Chapter
Appendix Q. Uniform Mediation Act 7 results (showing 5 best matches)
- (2) relating to a dispute that is pending under or is part of the processes established by a collective bargaining agreement, except that the [Act] applies to a mediation arising out of a dispute that has been filed with an administrative agency or court;
- [Alternative A: [State to insert, for example, child or adult protection] case is referred by a court to mediation and a public agency participates.]
- [Alternative B: public agency participates in the [State to insert, for example, child or adult protection] mediation].
- (1) “Mediation” means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.
- (5) “Mediation party” means a person that participates in a mediation and whose agreement is necessary to resolve the dispute.
- Open Chapter
- (d) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.
- (1) the arbitrator may issue such orders for provisional remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action and
- Open Chapter
Appendix H. The Uniform Arbitration Act 2 results
- (c) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.
- Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
- Open Chapter
Appendix I. Federal Arbitration Act 1 result
- ...parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make...
- Open Chapter
- Publication Date: August 16th, 2013
- ISBN: 9780314285324
- Subject: Dispute Resolution
- Series: Nutshells
- Type: Overviews
- Description: This title presents a concise summary of alternatives to the court adjudication of disputes. It provides an on-point discussion that facilitates an understanding of the wide variety of options available that can better suit a client's needs, such as negotiation, mediation, arbitration, and various hybrids such as arbitration-mediation, mediation-arbitration, and consensus-building, as well as court-connected processes. Particular attention is focused on the legal and ethical issues associated with negotiation, mediation, and arbitration. Each chapter contains a bibliography.