Principles of Alternative Dispute Resolution
Author:
Ware, Stephen J.
Edition:
4th
Copyright Date:
2023
15 chapters
have results for Employment Law Mediation
Chapter 4 433 results (showing 5 best matches)
- Law governing employment is often divided into two categories: “employment law” which applies to all employees, and “labor law” which governs employees’ collective activities, such as forming a labor union. Labor law has its own specialized terminology. Contracts between employers and unions are called “collective bargaining agreements.” Claims alleging breach of these contracts are called “grievances.” Mediation, in the labor context, is often called “conciliation.”
- Note, however, the special concern for unrepresented parties in Rule 2.4(b). One-lawyer mediation, in which the mediator is the only lawyer, importantly differs from three-lawyer mediation, in which each party has its own lawyer. While three-lawyer mediation is the norm for most settlement mediation, one-lawyer mediation is common in family law matters.
- On the other hand, some courts have invoked the mediation privilege to exclude evidence that an settlement agreement was formed at mediation. Such case law makes a mediation privilege, in effect, a Statute of Frauds for mediated settlement agreements; such agreements are enforceable only if written or otherwise recorded.
- Sarah R. Cole, Craig A. McEwen, Nancy H. Rogers, James R. Coben & Peter N. Thompson, Mediation: Law, Policy, & Practice § 6:6 (2021–22) (“Courts have found that delay in seeking mediation or refusal to mediate will result in waiver of the mediation clause”).
- Sarah R. Cole, Craig A. McEwen, Nancy H. Rogers, James R. Coben & Peter N. Thompson, Mediation: Law, Policy, & Practice § 9:3 (2021–2022) (in some laws duties to participate in mediation “are defined in specific terms, such as a duty to prepare documents for mediation, to appear at the mediation, or to appear at the mediation with a person who has settlement authority. It is common, however, to define the duty in general terms, usually requiring the parties to mediate in good faith. Typically, the court or court rule does not define ‘good faith,’ leaving it to the litigation process to flesh out the details of precisely what bargaining behavior is required.”) See, e.g., Kan. Stat. Ann. § 72–5430(c)(4); Me. Rev. Stat. Ann. tit. 19–A, § 251. Federal Rule of Civil Procedure 16(f), which is often used as authority for ordering pretrial conferences or mediation, goes further to sanction a party who is “substantially unprepared to participate.” Fed. R. Civ. P. 16(f).
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Chapter 2 738 results (showing 5 best matches)
- See, e.g., Am. Arb.Ass’n, Employment Arbitration Rules and Mediation Procedures, Rule 27 (“The arbitrator may allow the filing of a dispositive motion if the arbitrator determines that the moving party has shown substantial cause that the motion is likely to succeed and dispose of or narrow the issues in the case.”)
- Christopher R. Drahozal, Confidentiality in Consumer and Employment Arbitration, 7 Y.B. on Arb. & Mediation 28, 37 (2015) (“unless subject to a separate confidentiality agreement, a party is always free to disclose that it has a dispute and the nature of the dispute. Agreeing to arbitrate the dispute does not preclude the party from making such disclosure”) (providing examples).
- The categories of “employment law” and “labor law” carry over into the terminology of arbitration. “Employment arbitration” arises out of a contract between an employer and an individual employee, while “labor arbitration” arises out of a CBA between an employer and a union. Employment arbitration, both in its practice and in the law governing it, is very much within the mainstream of arbitration, while labor arbitration tends to be practiced quite differently from other arbitration and is governed by its own unique set of laws. Those differences of labor arbitration are emphasized in the following section, while labor arbitration’s similarities with other arbitration are noted in the various sections in which they arise.
- Law governing employment is often divided into two categories: “employment law,” which applies to employees as individuals, and “labor law” which governs employees’ collective activities, such as forming a labor union and ratifying a collective bargaining agreement (CBA) between the union and employer. Like other fields, labor law has its own specialized terminology.
- ee, e.g., Ariana R. Levinson, Erin O’Hara O’Connor, & Paige Marta Skiba, Predictability of Arbitrators’ Reliance on External Authority?, 69 Am. U.L.R. 1827, 1831 (2020) (“other preeminent labor arbitrators have long argued that arbitrators should not consider authority external to the governing contract”); Martin H. Malin & Jeanne M. Vonhof, The Evolving Role of the Labor Arbitrator, 21 Ohio St. J. on Disp. Resol. 199, 200–01 (2005) (“Since the earliest days of the profession, labor arbitrators have been grappling with the problem of how external law should be applied to the resolution of grievances under collective bargaining agreements. Arbitrators see their primary role as interpreting and applying the collective bargaining agreement between the parties. The agreement between the parties is their ‘law.’ Thus, conflict may arise over whether and how to apply ‘external laws’ to problems that arise under the ‘law’ of the collective bargaining agreement.”); Floyd D. Weatherspoon,...
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Note to Teachers 8 results (showing 5 best matches)
- 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 of being the default process once a dispute arises. 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” in which negotiation or mediation occurs. Whether that shadow is being cast by litigation or arbitration can make...
- In sum, I encourage ADR teachers to consider teaching arbitration before negotiation and mediation. Alternatively, instructors can easily use this book in a course that covers arbitration after negotiation and mediation by simply assigning Chapters 1, 3 and 4, before turning to Chapter 2.
- The pedagogical reason for putting arbitration first is that the negotiation and mediation portions of an ADR course tend to involve less doctrine than the arbitration portion of the course. So, the negotiation and mediation portions of the course have more role-playing exercises and more open-ended class discussions. When these experiences dominated the early portions of my ADR course, many of my students resisted a late-in-the-semester transition to what has been aptly called the “traditionally demanding feel” of the arbitration portion of the course, with its “[t]ough cases and hard questions.” By contrast, I have found little mid-semester resistance to a transition from arbitration to negotiation and mediation.
- Whatever the format of an ADR course, the instructor must consider how to organize the material to be covered. Notably, this book covers arbitration before negotiation and mediation. While many ADR books cover arbitration after negotiation and mediation—
- This Hornbook is designed to be the primary or secondary text in a law school course. In the United States, casebooks, rather than Hornbooks or other treatises, are the primary texts in many law school courses, and casebooks work well at the center of law school courses that emphasize Socratic dialog and “thinking like a lawyer.” In contrast, many dispute-resolution teachers design their courses to develop a wider array of practice skills, generally through the use of role-playing exercises. This Hornbook is especially well-suited to be the primary text for such courses. Because this book is clear and concise, students reading it can quickly gain a solid understanding of ADR’s central concepts and legal doctrines. This efficient use of time enables the ADR teacher to devote many class sessions to role-playing exercises, and discussion of them. Excellent role-playing exercises are available from several sources, including:
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Chapter 1 29 results (showing 5 best matches)
- So, people can compare arbitration and litigation as if they were competing products on a store’s shelf. And people can similarly compare negotiation and mediation to each other, For example, a comparison of arbitration and mediation will go awry unless it emphasizes the basic difference between a process that casts the shadow of the law and a process that occurs in that shadow.
- Mediation is facilitated negotiation. A mediator is someone who helps the negotiators negotiate. While negotiation involves only the parties and their agents, such as their lawyers, mediation adds the mediator, who is not an agent of either party. The mediator is neutral.
- While mediation is the most important process in aid of negotiation, other such processes include non-binding arbitration, early neutral evaluation, the mini-trial, and the summary jury trial. What all these processes (including mediation) have in common is that they do not by themselves resolve disputes. Rather, they help the parties negotiate a resolution to the dispute. Accordingly, they can be called “processes in aid of negotiation.”
- Binding results can be produced by mediation, and other processes in aid of negotiation, in the same manner that binding results can be produced by negotiation, by forming a settlement agreement. Also like negotiation, a process in aid of negotiation that does not produce a settlement agreement produces no legally-binding result. Mediation and other processes in aid of negotiation—including non-binding arbitration, early neutral evaluation, the mini-trial, and the summary jury trial—require a contract to be binding.
- See § 4.30(b). See also Craig A. McEwen, Nancy H. Rogers & Richard Maiman, Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 Minn. L. Rev. 1317, 1373 (1995) (“Although mandated divorce mediation in Maine seems to encourage earlier settlements, it does not typically replace trials. Maine lawyers did not view trial substitution as mediation’s major function. * * * [I]n the largest proportion of cases, mediated settlement replaces settlement negotiated without a mediator. Thus, it is not surprising that Maine attorneys describe mediation largely as formalizing and improving negotiation, rather than as providing an informal substitute for trials.”)
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Chapter 3 123 results (showing 5 best matches)
- See also Sarah R. Cole, Craig A. McEwen, Nancy H. Rogers, James R. Coben & Peter N. Thompson, Mediation: Law, Policy, & Practice § 7:2 (2014–2015 ed.) (“Because settlements conserve resources and make less work for the courts, they are highly favored by judges.”)
- See, e.g., Laura A. Kaster, Cognitive Barriers to Valuing Your Case for Settlement or Mediation: Improving Your Risk Assessment, N.J. Law., April 2011, at 43, 44 (“How can we actually improve the accurate assessment of the value of a case in order to assure that the settlement, whether reached through negotiation or mediation, represents a better alternative for the client than actually trying the case?”); Peter Toll Hoffman, Valuation of Cases for Settlement: Theory and Practice, 1991 J. Disp. Resol. 1 (1991) (“Trial lawyers frequently talk about the value of their cases when they are counseling clients, negotiating with opposing counsel, or conversing with their fellow attorneys. The term ‘value’ may have several definitions when referring to cases, but most attorneys intend it to mean the amount at which they expect a case to settle”).
- Negotiation is the most frequently used process of dispute resolution and is the foundation for other important processes of dispute resolution, such as mediation which is the focus of Chapter 4. The negotiation of disputes is the subject of this chapter.
- All the judges discussed in the preceding paragraph are engaged in mediation, the focus of the next chapter.
- Baumeister, Simpson, Ware and Weber, The Glucose Model of Mediation, 15 Pepp. Disp. Resol. L.J. 377, 410 (2015) (“people who are hungry, exhausted, or highly stressed tend to have less willpower than those who are well-fed, well rested, and relatively stress-free”)
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Table of Contents 72 results (showing 5 best matches)
Preface 5 results
- 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 students, lawyers, and scholars learning and researching ADR.
- Amid all this rich diversity, law can get lost. Law does not get lost in this book, however. This is a law book, written by a lawyer, for lawyers, law students, and others interested in law.
- 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 this ADR Hornbook was published in 2001, the second edition in 2007, and the third edition in 2016. This fourth edition is updated to reflect intervening developments in the law. It also contains new material on topics not addressed in the first three editions. The ADR Hornbook has expanded as the field of ADR has expanded.
- Prior to the 1970s, lawyers did not talk about “Alternative Dispute Resolution.” They did, however, practice ADR, for example, by negotiating settlement agreements and representing clients in arbitration. Such activities have long been performed by lawyers, but only in the last fifty years has ADR emerged as a distinct field of study in law school. This book is an outgrowth of that emergence.
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Summary of Contents 9 results (showing 5 best matches)
Appendix C 1 result
- (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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Index 43 results (showing 5 best matches)
Appendix B 7 results (showing 5 best matches)
- (a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
- (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
- (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
- (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
- 3. When signing, ratifying or acceding to this Convention, or notifying extension under article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration.
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Appendix A 13 results (showing 5 best matches)
- “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.
- Any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.
- The judgment so entered shall have the same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action in the court in which it is entered.
- An action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States. The district courts of the United States (including the courts enumerated in section 460 of title 28) shall have original jurisdiction over such an action or proceeding, regardless of the amount in controversy.
- (3) Sexual assault dispute.—The term “sexual assault dispute” means a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.
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West Academic Publishing’s Law School Advisory Board 18 results (showing 5 best matches)
- Publication Date: March 29th, 2023
- ISBN: 9781684677276
- 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.
