Alternative Dispute Resolution in a Nutshell
Author:
Nolan-Haley, Jacqueline M.
Edition:
5th
Copyright Date:
2021
12 chapters
have results for negotiation
Chapter 2. Negotiation 101 results (showing 5 best matches)
- Negotiations may be classified in two categories: dispute and deal-making or transactional negotiations. In planning for a negotiation, lawyers must initially determine which type is involved. 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 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.
- Lawyers should be aware of the importance of framing during the information exchange, this initial stage of the negotiation. Framing refers to the way a negotiation story is told. It reveals a negotiator’s understanding of the issues that are at stake. The manner in which issues are framed at the beginning of a negotiation may well determine whether the negotiation proceeds in a problem-solving or adversarial approach.
- Legal negotiation differs from other types of negotiation because it involves lawyers acting as agents representing clients. The agency relationship adds a collaborative dynamic to the negotiation process. Prior to the actual negotiation, the lawyer works with the client to help determine the client’s particular goals and objectives. Lawyers must develop an in-depth understanding of the underlying needs and interests that support the client’s positions.
- 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 mini-trial or summary jury trial. The post-hearing settlement talks may be more informed following these ADR proceedings, but they will not be effective if lawyers do not know how to make the negotiation process work effectively for clients.
- 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.
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Chapter 3. Mediation 20 results (showing 5 best matches)
- J. Robbennolt, Attorneys, Apologies and Settlement Negotiations, 13 Harvard Negotiation Law Review 349 (2008)
- Mediation is an assisted negotiation process. It is generally understood to be short-term, structured, task-oriented, and participatory. Disputing parties work with a neutral third party, the mediator, to plan a transaction or negotiate towards a resolution of their dispute. The core value of mediation is the principle of self-determination. This means that the parties who are affected by a dispute decide the outcome of the dispute. Unlike the adjudication process, where a neutral third party a decision, no such compulsion exists in mediation. The mediator aids the parties in reaching a consensus by facilitating their communications and negotiations, but it is the parties themselves who shape their agreement. Thus, mediation should always be a consensual process.
- mediator assists parties with their communications and negotiations. The mediator’s strategies are designed to help parties identify the issues in dispute, understand their real needs and interests, and formulate options for settlement. Several models have emerged along the continuum of the facilitative mediation framework:
- expands the common law rule to include not only offers of compromise but also “evidence of conduct or statements made in compromise negotiations.” These evidentiary exclusionary rules are discussed more fully in Chapter 2 on the negotiation process.
- Equally strong public policy arguments can be made in the case of mediation. As an extension of the negotiation process, mediation helps parties to resolve disputed claims. It can be argued therefore,
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Chapter 5. Dispute Resolution in the Court System 8 results (showing 5 best matches)
- After establishing an abbreviated discovery schedule, the master focused on facilitating a settlement. Using a computer-assisted negotiation model, the master helped the parties arrive at an agreement after only three days of negotiations. Only one tribe refused to be bound by the agreement and proceeded with litigation.
- The total hearing usually lasts for one day but it may be longer. Parties who use the SJT generally seek the same degree of confidentiality that settlement negotiations enjoy. The proceedings generally are not recorded. No statements, communications or jury findings from the SJT are admissible at a later trial on the merits.
- Just as magistrates and masters are assuming increased importance in settlement negotiations, so too are court-appointed experts. Because of their technical expertise in areas such as patent infringement, copyright, trade secret violations, and antitrust cases, these experts bring greater understanding to the substantive aspects of complex disputes and are often better able to fashion creative solutions than are judges.
- The growing popularity of ADR within the public justice system offers litigants the opportunity to resolve disputes in a broader framework than the traditional litigation process. Courts today are making greater use of the primary dispute resolution processes of negotiation, mediation and arbitration, in addition to the traditional judicial settlement conference. Mediation is now the most common form of court-connected ADR in federal district courts.
- Hybrid mechanisms such as the summary jury trial and early neutral evaluation programs have also been established in most courts. These processes use third parties to facilitate negotiation and help manage cases in an efficient and responsive manner. Finally, one of the most significant developments in court ADR is the expanding use of magistrates, special masters and neutral experts. In short, the full panoply of judicial ADR development shows that federal and state court systems are struggling to meet the demands for qualitative and quantitative justice.
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Chapter 6. Hybrid Dispute Resolution Procedures 13 results (showing 5 best matches)
- propose negotiation as a preferred method of rulemaking. The concept of negotiated rulemaking, also known as “neg-reg,” or regulatory negotiation, describes the use of negotiation by an administrative agency in any decision-making procedures. It involves direct participation in rulemaking by public agency regulators and the private business and advocacy groups affected by the regulations. The goal of the process is to reach consensus.
- Senior management representatives who have attended the information exchange enter into post-hearing negotiation discussions with a view towards reaching an out-of-court settlement. While the mini-trial usually takes one day, it may take a few weeks to reach an agreement.
- The mini-trial shall consist of an information exchange and settlement negotiation.
- Each party shall have in attendance throughout the information exchange and settlement negotiation a senior executive with settlement authority.
- The Human Touch in ODR: Trust, Empathy and Social Intuition in Online Negotiation and Mediation
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Chapter 1. Introduction 9 results (showing 5 best matches)
- 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, and various hybrids. 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 most law schools offer one or more ADR courses or specialized courses in areas such as mediation, negotiation, restorative justice, decision-making, facilitation and dispute system design. Some schools offer graduate and certificate programs in dispute resolution. Several law reviews are devoted solely to the study of alternative dispute resolution. The American Bar Association and other organizations sponsor negotiation, mediation and arbitration competitions for law students. Similar ADR developments have been implemented in graduate and business schools.
- Dispute Resolution: Negotiation, Mediation and Other Processes,
- It is certainly not possible in this book to catalogue, let alone describe, every ADR procedure. Instead, the focus is on presenting the major processes of alternative dispute resolution: negotiation, mediation and arbitration as well as some well-known hybrids of these processes such as the summary jury trial, early neutral evaluation, the mini-trial, consensus-building, facilitation, and negotiated rule-making. For purposes of analysis and client counseling, ADR processes should not be
- You should not think of ADR as a stand-alone course. It complements the study of civil procedure and it also interacts with your courses in contracts, remedies, torts, and professional responsibility. For example, questions related to the validity of a mediation agreement may be resolved by reference to the laws of contract. Deceptive behavior in negotiation may be governed by tort law and determining the appropriate role of the attorney
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Index 7 results (showing 5 best matches)
Outline 10 results (showing 5 best matches)
Chapter 4. Arbitration 2 results
- Dispute Resolution: Negotiation, Mediation, and Other Processes,
- Critical public sector employees such as the police, teachers and firefighters, are usually not permitted to participate in strikes as part of their labor negotiations. A majority of states, therefore, have enacted legislation requiring compulsory arbitration as the final step in negotiating the terms of a collective bargaining agreement between municipalities and their critical employees. These statutes typically provide for the arbitration of interest disputes by a tripartite panel of arbitrators who decide such issues as wages, hours and working conditions.
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Appendix M. Uniform Mediation Act 2 results
- “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.
- relating to the establishment, negotiation, administration, or termination of a collective bargaining relationship;
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- 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.
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- Publication Date: September 29th, 2021
- ISBN: 9781684674336
- Subject: Dispute Resolution
- Series: Nutshells
- Type: Overviews
- Description: This title presents a concise summary of alternatives to the court adjudication of disputes. On-point discussion 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 mixed mode hybrids such as arb-med, med-arb, consensus-building as well as court-connected processes. Particular attention is focused on the legal and ethical issues associated with negotiation, mediation and arbitration. Other topics include dispute system design, implicit bias, repeat player bias, and third-party funding. Each chapter contains a bibliography. This is a must read for anyone interested in the field of dispute resolution.
