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CHAPTER FOUR

CHAPTER FOUR. ALTERNATIVE DISPUTE RESOLUTION. MUSOLINO. SUNY CRIMINAL & BUSINESS LAW. Learning Objectives. Discuss the shortcomings of litigation List the advantages and disadvantages of ADR Identify the advantages of mediation Explain the nature of an arbitration hearing

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CHAPTER FOUR

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  1. CHAPTER FOUR ALTERNATIVE DISPUTE RESOLUTION MUSOLINO SUNY CRIMINAL & BUSINESS LAW

  2. Learning Objectives • Discuss the shortcomings of litigation • List the advantages and disadvantages of ADR • Identify the advantages of mediation • Explain the nature of an arbitration hearing • Outline the med-arb process • Relate the role of an early neutral evaluator

  3. Learning Objectives • Describe the process of running a summary judgment trial • Determine the advantages of a private civil trial • Clarify the private options available under proactive ADR • Specify the governmental options available under proactive ADR

  4. Question? What occurs whenever individuals attempt to resolve disagreements by stepping outside the usual adversarial system? • Alternative dispute resolution • Substitute resolution • Dispute optional resolution • Alternative resolution

  5. Alternative Dispute Resolution • Alternative Dispute Resolution • occurs whenever individuals attempt to resolve disagreements by stepping outside the usual adversarial system and applying creative settlement techniques

  6. Problems with Litigation • Justice often goes to those who can afford it • Litigation can be expensive • Litigation can be time consuming • Some jurisdictions require litigants to submit to hearings before securing a trial date

  7. The ADR Option • Time involved in settling a dispute can be shortened and expenses lowered • Proactive ADR anticipates and deals with disputes before they occur

  8. Shortcomings of ADR • Private administration of justice hampers the development of the law • Many critical social issues may never reach the judicial system • Limited scope

  9. ADR Techniques • Mediation • Arbitration • Med-arb • Early neutral evaluation • Summary jury trials • Private civil trials • Mini-trials

  10. Question? What is the process by which the parties to a dispute invite a third party, known as a mediator, to help find a solution to their problem? • Arbitration • Mediation • Negotiation • Adjudication

  11. ADR Techniques • Mediation • process by which the parties to a dispute invite a third party, known as a mediator, to help find a solution to their problem • The job of the mediator is to convince parties to adjust or settle their dispute

  12. ADR Techniques • Arbitration • process by which the parties invite a third party, called an arbitrator, to settle their dispute • Required arbitration is called mandatory arbitration

  13. Shortcomings of Arbitration • Hearing is run like a trial but without the safeguards that come with the rules of civil procedure, discovery, and motion practice • Wide discretion granted to arbitrators can lead to unreasonable decisions and unjustifiable awards

  14. ADR Techniques • Med-arb • process that combines mediation with arbitration • If after mediation, a dispute is still unsettled, parties can move to an arbitration hearing

  15. Question? What is the process by which the parties permit a referee to assess their case based on the facts and legal arguments alone? • Early neutral evaluation • Summary jury trial • Civil judgment • Neutral judgment

  16. ADR Techniques • Early neutral evaluation • process by which the parties permit a referee to assess their case based on the facts and legal arguments alone

  17. ADR Techniques • Summary jury trial • shortened version of a trial conducted in less than a day before an actual jury which then renders an advisory verdict in the case • Offers litigants a chance to see how a jury would react

  18. ADR Techniques • Private civil trial • parties hire a retired judge or magistrate to hear their dispute following the same rules used in an official trial • Advantages • parties can hold trial at a time and place of their choosing • parties can choose their own judge

  19. Proactive ADR • Partnering • ADR contract clauses • Settlement week • Negotiated rule making • Science court proposal

  20. Proactive ADR • Partnering • process that establishes supportive relationships among the parties to a contract in order to head off disputes before they occur • Best used when a contract involves complex interrelationships among a wide variety of different parties

  21. Proactive ADR • ADR contract clause • specifies that the parties to the agreement have promised to use an alternative resolution dispute technique when a disagreement arises rather than litigating the issue • Advantages • helpful when two or more parties have an extended affiliation that may involve numerous contracts • beneficial to those parties with the weakest position in a contractual relationship

  22. Question? What is the five day period during which a court’s docket is cleared of all business, except for settlement hearings? A. Mediation week B. Settlement court C. Settlement week D. Arbitration week

  23. Proactive ADR • Settlement week • five day period during which a court’s docket is cleared of all business, except for settlement hearings • Cases are matched with mediators and a schedule is established

  24. Proactive ADR • Negotiated rule making (reg-neg) • process by which an agency invites the people and the organizations to be affected by a new rule to have input into the writing of that rule

  25. Question? What is an objective outsider who is trained in facilitating the early stages of the negotiated rule making process? • Mediator • Arbitrator • Convenor • Adjudicator

  26. Negotiated Rule Making • Convenor • objective outsider who is trained in facilitating the early stages of the negotiated rule making process • Convening • preliminary steps in the negotiated rule making process

  27. Proactive ADR • Post-appellate procedures • involve taking a case that has been rejected or dismissed by a domestic court to an international organization • International arbitration agreement • involves a pledge to use arbitration should the parties find themselves in disagreement as to the enforcement rights under the original contract

  28. Question? Which court acts as a forum for disputes involving scientific and technological controversies? • Technology court • Science court • Science resolution body • Technology appellate board

  29. Proactive ADR • Science court • acts as a forum for disputes involving scientific and technological controversies • Judges on the science court are scientists educated in the areas under investigation, allowing them to use their expertise

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