Principles of Alternative Dispute Resolution
Author:
Ware, Stephen J.
Edition:
3rd
Copyright Date:
2016
18 chapters
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Chapter 4. Mediation and Other Processes in Aid of Negotiation 410 results (showing 5 best matches)
- Ronald L. Olson, An Alternative for Large Case Dispute Resolution, 6 No.2 Litigation 22 (Winter 1980). See also Eric D. Green, Corporate Alternative Dispute Resolution, 1 Ohio St.J.on Disp.Resol. 203, 238–245 (1986).
- See generally, Cole et al., supra note 1, §§ 6:1–2 & 6:8. For sample clauses, see, e.g., Am. Arbitration Ass’n, Drafting Dispute Resolution Clauses—A Practical Guide (2004), http://www.adr.org/sp.asp?id–22020; Am.Jur.Pleading & Practice Forms Ann., Alternative Dispute Resolution § 7 (2006); Jay E. Grenig, West’s Legal Forms: Alternative Dispute Resolution § 2.33 (3d ed. 2006).
- H. Jay Folberg, Divorce Mediation: A Workable Alternative, from American Bar Association, Alternative Means of Family Dispute Resolution 11, 17 (1982).
- See Edward Brunet & Charles B. Craver, Alternative Dispute Resolution: The Advocate’s Perspective 44–54 (2d ed.2001); Donald G. Gifford, Legal Negotiation: Theory and Applications 127–32 (1989).
- Jay E. Grenig, West’s Legal Forms: Alternative Dispute Resolution § 2.39 (3d.ed.2005).
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Title Page 2 results
Chapter 1. Introduction 77 results (showing 5 best matches)
- ADR can be defined as encompassing all legally-permitted processes of dispute resolution other than litigation. While this definition (or something like it) is widely-used, ADR proponents may object to it on the ground that it privileges litigation by giving the impression that litigation is the normal or standard process of dispute resolution, while alternative processes are aberrant or deviant. In fact, litigation alone resolves relatively few disputes and alternative processes, especially negotiation, resolve far more disputes. Even disputes involving lawyers are resolved by negotiation far more often than by litigation.
- This book surveys Alternative Dispute Resolution (“ADR”). Accordingly, this introductory chapter begins by defining dispute, then discusses what constitutes resolution of a dispute. With the concept of
- there are a variety of views about what constitutes resolution of a dispute. Accordingly, there are a variety of views about what constitutes a of dispute resolution. If, for example, you believe that merely ending a dispute constitutes resolving it, then you must recognize violence as a process of dispute resolution because violence can end a dispute by killing the claimant(s). In contrast, if you believe that dispute resolution requires not just ending a dispute, but ending it in such a way that the claimant is satisfied with the result, then you will not see the violent death of the claimant(s) as a process of dispute resolution.
- Not only does litigation produce legally-binding results, but its results are binding even on parties who never contracted to have their disputes resolved in litigation. This distinguishes litigation from ADR. ADR processes can produce legally-binding results too, but the results of an ADR process bind only those parties who have To put it another way, litigation is the default process of dispute resolution. Parties can contract into alternative processes of dispute resolution, but if they do not do so then each party retains the right to have the dispute resolved in litigation.
- dispute resolution, rather than alternative dispute resolution. Leonard L. Riskin & James E. Westbrook, Dispute Resolution and Lawyers 51 (2d ed.1997). This usage emphasizes the ability to “choose or design the most appropriate methods to resolve a dispute.” Id. While nobody says he or she opposes “appropriate” dispute resolution, there is disagreement over who gets to decide which process is most appropriate for which dispute. This book is written with the conviction that the parties to each dispute should be free to decide for themselves which process is most appropriate. The contrary view is perhaps most famously expressed in Owen Fiss, Against Settlement, 93 Yale L.J. 1073 (1984).
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Chapter 2. Arbitration and Similar Processes 1268 results (showing 5 best matches)
- See id. Adjudication is a process by which somebody (the adjudicator) decides the result of a dispute. See Stephen J. Ware, Principles of Alternative Dispute Resolution § 1.5(a), n.12 (2d ed.2007). See, e.g., Lon Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 364 (1978) (“the distinguishing characteristic of adjudication lies in the fact that it confers on the affected [disputing] party a peculiar form of participation in decision, that of presenting proofs and reasoned arguments for a decision in his favor.”); Alan Scott Rau, Edward F. Sherman & Scott R. Peppet, Processes of Dispute Resolution 21 (4th ed. 2006) (“ ‘Adjudication’ refers to the process by which final, authoritative decisions are rendered by a neutral third party who enters the controversy without previous knowledge of the dispute.”)
- With respect to this dispute, arbitration has replaced litigation as the default process of dispute resolution. Disputing parties who have previously agreed to arbitrate can contract into some other process of dispute resolution, but if they do not do so then each party has the right to have the dispute resolved in arbitration. See § 1.7(b).
- (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.
- “Only in a few, specialized types of arbitrations do arbitrators routinely craft written decisions—labor arbitrations, international commercial arbitrations, and maritime arbitrations.” Edward Brunet & Charles B. Craver, Alternative Dispute Resolution: The Advocate’s Perspective 316, 319, 327–28 (2001).
- The alternative would require arbitration of liability and other non-punitive damages issues, followed by judicial resolution of claims for punitive damages. At least one court has severed a claim for punitive damages to send the rest of the dispute to arbitration.
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Chapter 3. Negotiation 584 results (showing 5 best matches)
- related to any dispute is commonplace. Such negotiation often precedes deals, such as the hiring of an employee or the sale of a home or business. Transactional negotiation is central to the practices of many lawyers. It is not, however, a subject of this book. This book surveys Alternative Dispute Resolution so this chapter focuses on the negotiation of disputes.
- Some, but not all, negotiation relates to a dispute. Negotiation is the most frequently used process of dispute resolution and is the foundation for other important processes of dispute resolution, such as which is the focus of Chapter 4. The negotiation of disputes is the subject of this chapter.
- In litigation, both parties usually share the same alternative to negotiating a resolution of their dispute: proceeding to court.
- Edward Brunet, Charles B. Craver & Ellen Deason, Alternative Dispute Resolution: The Advocate’s Perspective 27 (4th ed.2011).
- John S. Murray, Alan Scott Rau & Edward F. Sherman, Processes of Dispute Resolution: The Role of Lawyers 89 (2d ed.1996) (“Bottom lines are no longer single figures, but a series of settlement packages that for the offering party represent the same utility value.”)
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Acknowledgments 18 results (showing 5 best matches)
- ABA Section of Dispute Resolution, Resolution on Mediation and the Unauthorized Practice of Law Adopted by the Section on February 2, 2002, 2002, published by the American Bar Association Section of Dispute Resolution. © 2002 by the American Bar Association. Reprinted with permission.
- Jay E. Grenig, West’s Legal Forms: Alternative Dispute Resolution §2.39 (3d.ed.2005). © Thomson/West. All rights reserved.
- ABA Model Standards of Conduct for Mediators, September 2005, published by the American Bar Association Section of Dispute Resolution. © 2005 by the American Bar Association. Reprinted with permission.
- John S. Murray, Alan Scott Rau & Edward F. Sherman, Processes of Dispute Resolution: The Role of Lawyers (2d ed.1996). Reprinted by permission. Copyright © 1996 by West Group, Foundation Press.
- Alan Scott Rau, Edward F. Sherman & Scott R. Peppet, Processes of Dispute Resolution (4th ed.2006), reprinted with permission of West Academic.
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Note to Teachers 12 results (showing 5 best matches)
- Edward Brunet, Charles B. Craver & Ellen E. Deason, Alternative Dispute Resolution: The Advocate’s Perspective vi (4th ed.2011).
- • American Bar Association’s Dispute Resolution Resource Database http://www.americanbar.org/directories/dispute-resolution.html
- • University of Missouri Center for the Study of Dispute Resolution http://law.missouri.edu/drle/teaching/simulations-and-exercises-various-simulations-and-materials/
- The conceptual reason for putting arbitration before negotiation and mediation is that arbitration is the only ADR process that can produce legally binding results without a post-dispute contract. From the post-dispute perspective then, either arbitration or litigation is the default process, the one process capable of producing a legally binding resolution without further agreement between the parties. None of the other major ADR processes (including negotiation and mediation) is capable of achieving this status, that is, of being the post-dispute default process. Furthermore, negotiation and mediation are often heavily influenced by the default process. That is because negotiators’ expectations about the results of litigation or arbitration shape the negotiators’ attitudes toward various settlement terms. In other words, the default process casts the “shadow of the law.” Whether that shadow is being cast by litigation or arbitration can make an enormous difference. Consider, for...of
- • Willamette University Center for Dispute Resolution http://www.willamette.edu/modules/simbank/login.cgi
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Index 30 results (showing 5 best matches)
Preface 8 results (showing 5 best matches)
- Prior to the 1970’s, lawyers did not talk about “Alternative Dispute Resolution.” They did, however, practice ADR. They negotiated settlement agreements and they represented clients in arbitration. Such activities have long been performed by lawyers. Only in the last forty or so years, though, has ADR emerged as a distinct field of study in law school. This book is an outgrowth of that emergence.
- This book surveys ADR—arbitration, negotiation, mediation, and other processes of dispute resolution. This book is written with one overriding goal, to serve as a clear and reliable statement of the law and concepts central to ADR. So this book should be useful to lawyers and scholars researching ADR.
- The literature on ADR is large and growing. Not only does the ADR literature represent a wide variety of views, it represents a wide variety of approaches. Much of what is written on ADR consists of prescriptive guidance for practitioners, containing suggestions on “how to be a better mediator,” for example. Other ADR writings are descriptive or empirical, in the manner of social science. Finally, some ADR writings are theoretical, even philosophical, and occasionally theological.
- A large body of legal doctrine—from statutes, judicial decisions, and other sources—focuses on ADR. This doctrine is prominent throughout this book, even in the sections addressing the practice of ADR, because the practice of ADR is pervasively influenced by the law of ADR. This book is written with the conviction that the law of ADR is every bit as important and challenging as the law of other fields, so ADR deserves its own Hornbook.
- The first edition of the ADR Hornbook was published in 2001, and the second edition in 2007. This third edition is updated to reflect intervening developments in the law. It also contains new material on topics not addressed in the first two editions. The ADR Hornbook has expanded as the field of ADR has expanded.
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Table of Contents 109 results (showing 5 best matches)
- (d) Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. The [Federal Mediation and Conciliation] Service is directed to make its conciliation and mediation services available in the settlement of such grievance disputes only as a last resort and in exceptional cases.
- (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without regard to the citizenship of the parties.
- (b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.
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Appendix A. Federal Arbitration Act 66 results (showing 5 best matches)
- A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the 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...
- (b) In the event the rules of procedure of the Inter-American Commercial Arbitration Commission are modified or amended in accordance with the procedures for amendment of the rules of that Commission, the Secretary of State, by regulation in accordance with section 553 of title 5, consistent with the aims and purposes of this Convention, may prescribe that such modifications or amendments shall be effective for purposes of this chapter.
- “Maritime transactions”, as herein defined, means charter parties, bills of lading of water carriers, agreements relating to wharfage, supplies furnished vessels or repairs to vessels, collisions, or any other matters in foreign commerce which, if the subject of controversy, would be embraced within admiralty jurisdiction; “commerce”, as herein defined, means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation, but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.
- The arbitrators selected either as prescribed in this title or otherwise, or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case. The fees for such attendance shall be the same as the fees of witnesses before masters of the United States courts. Said summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person and shall be served in the same manner as subpoenas to appear and testify before the court; if any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators, or a majority of them, are sitting may compel the attendance of such person or persons...of
- If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. Notice of the application shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as...
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Appendix B. New York Convention 40 results (showing 5 best matches)
- 3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.
- 1. This Convention shall be open until 31 December 1958 for signature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations.
- 2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later
- 3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories.
- (b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent states or provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of constituent states or provinces at the earliest possible moment;
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Advisory Board 9 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Earle K. Shawe Professor of Law, University of Virginia School of Law
- Professor of Law and Dean Emeritus, University of California, Berkeley
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Table of Cases 114 results (showing 5 best matches)
- Ministry of Defense of the Islamic Republic of Iran v. Gould, Inc., 204
- Coca-Cola Bottling Co. of New York, Inc. v. Soft Drink and Brewery Workers Union Local 812, Int’l Broth. of Teamsters, 91
- Covenant Health & Rehab. of Picayune v. Estate of Moulds ex rel. Braddock, 31, 74
- Neary v. Regents of University of California, 277
- Regents of the Univ. of Calif. v. Sumner, 456
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Copyright Page 2 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
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- Publication Date: September 23rd, 2016
- ISBN: 9781634595742
- Subject: Dispute Resolution
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: Provides a clear and reliable statement of the law and concepts central to ADR (arbitration, negotiation, mediation, and other processes). Its thorough coverage of arbitration law renders this challenging and rapidly-changing body of statutes and case law accessible to the student or lawyer. The chapters on negotiation and mediation treat the subjects from the perspectives of theory, practice, and legal doctrine.