Chapter 5 Legl - Negotiation And Adr

Front 1

Define 'Negotiation'.

Back 1

“Negotiation” is the process used to persuade or coerce someone to do what you want him or her to do.

Front 2

True or False: Conflicts exist whenever there are two or more points of view.

Back 2

True.

Conflicts are not negative. Can stimulate significant thoughts and produce greater discoveries.

Conflicts lead to disputes.

Front 3

Define 'Dispute'.

Back 3

Disputes arise when one party makes a claim that another party denies.

Front 4

Define 'Negotiated Settlement'.

Back 4

Working out the dispute by mutual agreement.

Front 5

Name 5 methods for negotiating settlements.

AACCC

Back 5

1) Accommodate
2) Avoid
3) Compete
4) Compromise
5) Collaborate

Front 6

Define 'positional bargaining' or position-based negotiation.

Back 6

• A method of negotiation that focuses on the parties exchanging offers, with concessions being made so that parties find a middle ground. The seller refers to the last offer made as its bottom line, and the buyer refers to the last offer made as its top dollar.

Front 7

Define 'principaled, interest-based negotiation'.

Back 7

A negotiation method that focuses on the parties’ interests as opposed to positions. The language used to describe this bargaining includes options, alternatives, objective criteria, and relationships.

Front 8

What are the seven key factors in interest-based negotiation?

CRIOLAC

Back 8

1) Communication
2) Relationship
3) Interests
4) Options
5) Legitimacy
6) Alternatives
7) Commitment

Front 9

Define Factor 1: Communication

Back 9

Sharing complaints help locate a problem. Clear communication between these parties may assist them in becoming joint problem solvers. Without the exchange of information, these parties are likely to continue blaming each other.

Front 10

Define Factor 2: Relationship

Back 10

Parties will likely benefit by discussing how each could benefit by continuing their relationship of customer and supplier.

Front 11

Define Factor 3: Interests

Back 11

Parties must communicate real interests to each other.

Front 12

Define Factor 4: Options

Back 12

Brainstorm possible options and solutions to the dispute.

Look for creative ways to solve the problem.

Front 13

Define Factor 5: Legitimacy

Back 13

Legitimacy involves the application of accepted standards to the topic negotiated - rather than having the parties state unsupported propositions.

Important to be willing to settle the case and not just get the other side to reveal the litigation strategy.

Front 14

Define Factor 6: Alternatives

Back 14

What are the outcomes available without agreement of the other party?

Other options you have.

Front 15

Define Factor 7: Commitment

Back 15

Successful negotiation must conclude with the parties make realistic commitments that can be put into practice.

Conclusion of the negotiation will be an agreement between the parties that avoids the expense of litigation. If agreement is not a settlement, then it might be an agreement to utilize one of the ADR systems.

Front 16

Define 'Arbitration'.

Back 16

When disputing parties submit their dispute to a neutral third party called an arbitrator.

Arbitrator is given the power to reach a binding decision resolving the controversy

Front 17

True or False: Arbitration does award punitive damage, and it is pro-social.

Back 17

False;

Arbitration DOES NOT award punitive damages and is PRO-BUSINESS.

Front 18

Define 'Arbitrator'.

Back 18

Decision maker who should be disinterested in any financial impact of the decision and neutral regarding the issues presented in the dispute.

Takes the place of the jury and judge in the litigation process.

Front 19

What does it mean to submit to arbitration?

Back 19

Submission - when disputing parties agree to arbitrate.

The parties authorize an arbitrator to make a decision that binds these parties and resolves their dispute.

Front 20

True or False: An agreement to submit an issue to arbitration is irrevocable.

Back 20

True;

Party not favoring the outcome of the arbitration cannot withdraw from the arbitration and resort to litigation.

Front 21

Explain how Arbitrators are experts.

Back 21

Arbitration provides for decision making by experts with experience in the particular industry and with knowledge of the customs and practices of the particular work site.

Front 22

How many arbitrators are chosen for an arbitration?

Back 22

Either 1 or 3.

Front 23

True or false; No licensing requirements to be an arbitrator.

Back 23

True.

Front 24

Define 'award'.

Back 24

The decision announced by the arbitrator.

Known as an opinion or letter.

It is enforceable (basically a contract).

Front 25

True or False: Parties are bound by the award.

Back 25

True;

Will not be overturned unless there is obvious fraud or inappropriate action by the arbitrator.

Front 26

Name 5 Reasons to arbitrate.

Back 26

1) Quick and inexpensive
2) Ease congested court dockets
3) Privacy
4) Preserve business and workplace relationships
5) Expertise

Front 27

Name 3 kinds of Arbitration

FSV

Back 27

1) Federal Arbitration Act (FAA)
2) Statutorily Mandated Arbitration
3) Voluntary/Contract Based Arbitration

Front 28

Define the Federal Arbitration Act (FAA)

Back 28

The FAA encourages disputing businesses to utilize arbitration.

It is federal law that covers any arbitration clause in a contract that involves interstate commerce.

Strong policy that arbitration should be used to resolve interstate commerce disputes.

EX: Interstate commerce involving goods. These would be considered FAA arbitrations.

Front 29

Define Statutorily Mandated Arbitration.

Back 29

State statutes that require arbitration for certain matters before resorting to litigation.

Mandatory arbitration occurs when a statute or court requires parties to arbitrate.

Front 30

Define 'Voluntary/Contract Based Arbitration'.

Back 30

When parties agree to arbitrate especially with a "predispute arbitration clause".

Front 31

Define 'predispute arbitration clause'.

Back 31

The contracting parties show good judgment in understanding conflict exist, conflicts give rise to disputes, and disputes are better resolved through arbitration rather than by litigating.

Front 32

Define 'postdispute arbitration agreement'.

Back 32

For people who view arbitration clause in the contract as an indication that bad things will happen. They do not want to lessen the forthcoming opportunities with any expectation that problems might occur. Such agreements arise when parties already in dispute decide that arbitration is better than litigation.

Front 33

True or False: Courts only throw out awards that require you to commit a crime or violate the law.

Back 33

True;

Crummy job does not give reason for an award to be thrown out; corruption and fraud, however, are grounds for throwing out.

Front 34

Under the FAA, what are the four grounds for setting aside an arbitrator's award?

Back 34

1) The award was procured by corruption, fraud, and other undue means.
2) The arbitrators were obviously partial and corrupt
3) Where the arbitrators were sufficiently guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy or of any other misbehavior by which the rights of any party have been prejudiced
4) Where arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter was not made.

Front 35

Define 'Mediation'.

Back 35

Process by which a third person called a mediator attempts to assist disputing parties to resolve their differences.

Trying to get a party to reach a settlement agreement.

Front 36

List the advantages of Mediation

Back 36

Disputing parties retain full control over the resolution.

Not at risk of being bound by an arbitrator's decision.

Parties can decide how much time and effort to put into the mediation process.

Can stop at any time

Front 37

List the disadvantages of Mediation

Back 37

No enforcement mechanism that ensures the parties will mediate in good faith.

Parties must be able to agree on a mediator. Process cannot begin if they do not select a mediator.

Certification for mediators is not universally defined.

Front 38

Define 'caucus'.

Back 38

When the mediator meets with each party separately.

Front 39

True or False: Mediation is only for civil matters.

Back 39

True.

Front 40

Define the role of a focus group.

Back 40

• Attorneys assemble a group of citizens and present their evidence. This group then deliberates and makes findings. Dress rehearsal gives attorneys insight into possible jury reaction to the evidence and points up weaknesses in the case. Role play.
• Issues are tested without with out introducing evidence.