Principles of Alternative Dispute Resolution
Author:
Ware, Stephen J.
Edition:
3rd
Copyright Date:
2016
13 chapters
have results for alternative dispute resolution
Chapter 4. Mediation and Other Processes in Aid of Negotiation 126 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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Chapter 1. Introduction 58 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.
- 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).
- This book surveys Alternative Dispute Resolution (“ADR”). Accordingly, this introductory chapter begins by defining dispute, then discusses what constitutes resolution of a dispute.
- 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, 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.
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Chapter 2. Arbitration and Similar Processes 236 results (showing 5 best matches)
- 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).
- 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.”)
- 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 71 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.
- 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).
- 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.
- § 3.45 Dispute Resolution vs. Public Justice
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Note to Teachers 6 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
- • Willamette University Center for Dispute Resolution http://www.willamette.edu/modules/simbank/login.cgi
- • 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...
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Index 10 results (showing 5 best matches)
Acknowledgments 8 results (showing 5 best matches)
- Jay E. Grenig, West’s Legal Forms: Alternative Dispute Resolution §2.39 (3d.ed.2005). © Thomson/West. All rights reserved.
- 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.
- 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.
- Stephen B. Goldberg, Frank E.A. Sander, Nancy H. Rogers & Sarah Rudolph Cole, Teacher’s Manual, Dispute Resolution: Negotiation, Mediation, and Other Processes (4th ed.2003), with permission of Wolters Kluwer Law & Business.
- Carrie J. Menkel-Meadow, Lela Porter Love, Andrea Kupfer Schneider & Jean R. Sternlight, Dispute Resolution: Beyond the Adversarial Model (2005), with permission of Wolters Kluwer Law & Business.
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Preface 2 results
- 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.
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Table of Contents 17 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.
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Appendix A. Federal Arbitration Act 1 result
- ...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 an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may...
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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.