OBE 118 - LEGAL ENVIRONMENT OF BUSINESS Dispute Resolution . PREFATORY THOUGHTS You are discussing with your attorney a legal problem. You are confident that your version of the facts in the dispute can be proved. You ask the attorney “does my cause has merit?
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Alternative Dispute Resolution (ADR) describes alternatives to the traditional judicial resolution of disputes
ADR suggests a move from a rights approach to an interest based approach in dispute resolution.
Of less importance
NATURE OF ARBITRATION (CONTINUED) based approach in dispute resolution.
Federal and state statutes authorize & encourage arbitration
Arbitration processes are usually less formal than courts.
Power of arbitration based on the agreement of the parties, statutory law, and/or incorporated procedures.
Power of arbitration can be lost at any time if both parties agree to handle the dispute in court.
If arbitration clause exists but one party refuses to arbitrate the other party can seek a judicial order to compel arbitration.
NATURE OF ARBITRATION based approach in dispute resolution.
Issues to be heard, number of arbitrators, arbitrator power, processes to be used, and timing are all-dependent on the arbitration agreement.
provide the procedural and substantive boundaries of the case.
arbitrators clauses are provided from organizations such as AAA
QUALIFICATION AND SELECTION OF ARBITRATORS based approach in dispute resolution.
Agreement of the parties names the arbitrator(s)
Use of standard clauses of professional associations. Such as the American Arbitration Association
Permanent referee for series of expected or possible disputes
Selection from panels
Expertise in subject matter of dispute
Known in field
Reputation for fairness
Recommendation by board
Trained in hearing processes
WHY SELECT ARBITRATION? based approach in dispute resolution.
Faster from filing to hearing
Less adversarial than litigation
More certain resolution
WHY SELECT ARBITRATION? (CONTINUED) based approach in dispute resolution.
Private. Public is unaware of disputes in which they may have an interest. Potential litigants unaware of case outcome.
True consent of parties to arbitration?
Not always less expensive?
Loss of right to correct errors of law as the right of appeal is very limited.
MEDIATION based approach in dispute resolution.
Mediation--A form of negotiation with the most significant attribute being the addition of a skilled third party expert who assists (facilitates) the parties to negotiate their own resolution.
Intervention in a negotiation or a conflict by an acceptable third party with limited or no authoritative decision-making power but who assists the involved parties in voluntarily reaching a mutual acceptable settlement of the issues in dispute (Christopher Moore).
GENERAL NATURE OF AND CONTRAST WITH OTHER METHODS IN THE UNITED STATES
Private while litigation is public.
Parties remain in control of decision rather than relinquishing control to government or third party.
Mediator facilitates agreement instead of imposing a resolution like in litigation or arbitration.
Non-adversarial while litigation in U.S. is adversarial.
GENERAL NATURE OF AND CONTRAST WITH OTHER METHODS IN THE UNITED STATES (CONTINUED)
Occurrence of mediation suggests progress because it is voluntary. Parties may not agree on resolution but they agree on a method to resolve dispute.
Mediation is less formal than other methods.
HOW PROCESS IS SELECTED OR BEGUN UNITED STATES (CONTINUED)
One party seeks mediation and the provider contacts the other party
PROCESS PROVIDERS UNITED STATES (CONTINUED)
Non-profit generalists ADR providers - American Arbitration Association
Community mediation centers such as the Sacramento mediation center
State mediation providers such as the California center for public dispute resolution or the Iowa Peace Institute
CASES MOST APPROPRIATE FOR MEDIATION UNITED STATES (CONTINUED)
The parties have a stake in resolving the dispute.
The parties share motivation for early settlement.
The parties are interdependent and must rely on the cooperation of one another to meet their goals or satisfy their interests.
CASES BELIEVED INAPPROPRIATE FOR MEDIATION UNITED STATES (CONTINUED)
Disputes focused on beliefs.
Severe imbalance of power between the parties.
Unmanageable behavior on the part of either party
MEDIATORS (CONTINUED) UNITED STATES (CONTINUED)
Experience in dispute resolution including training and by temperament. Person is able to influence and cajole parties as if a group leader without having had the time to develop that level of respect.
Area expertise. Understands the underlying nature of the dispute.
Listener. Creative problem solver.
Negotiation UNITED STATES (CONTINUED)
Summary jury trial
Process authorized in a few states (including California) whereby at the parties request a court can refer a case to a neutral of the parties choosing who will hear and decide the case. Normal rules of pleading, evidence, and discovery apply and the decision can be appealed on the record to the public courts as if it were decided in a public court
Neutral is initially authorized to mediate a dispute and if the parties fail to negotiate a resolution is thereafter authorized to decide the dispute or any undecided issues. Abbreviation of terms mediation and arbitration.
United StatesSupreme Court
(Highest Appeals Court)
Nine Justices; appointed for life; may refuse to hear a case; final authority
Three judges hear each case, brought up from the District Courts.
Lower Appeals Courts
U.S. Court of Appeals for the Federal Circuit
Hears appeals from specialized trial courts.
U.S. Courts of Appeals (12 Circuits)
Click on any box below for a definition of the jurisdiction of that trial court.
U.S. District Courts
U.S. Bankruptcy Courts
U.S. Court of International Trade
U.S. Tax Courts
U.S. Patent & Trademark Office
U.S. Claims Court
Primary Trial Court
Trial Courts of Limited (Specific) Jurisdiction
Various Federal Agencies
Trial Courts of Limited (Specific) Jurisdiction
The California Court System UNITED STATES (CONTINUED)
7 justices-Appointed by Governor confirmed by Commission. Lawyer for 10 years
Serve for 12 year term. Thereafter elected for additional terms.
Courts of Appeal
105 Judges. Same methods & qualifications as Supreme Court
Sit in 3 judge panels
One Court for each County
Alpine County 2 judges
Los Angeles County
8 Divisions at over 50 locations
Electedby County voters for 6 year terms. Vacancies appointed by governor. Lawyer for 10 years
ADVERSARY NATURE OF US COURTS AND US LEGAL SYSTEM UNITED STATES (CONTINUED)
Burden is on the parties to begin the process and to bring information to the attention of court. Essential requirement of a moving party.
Court is a neutral arbiter.-Primarily a processing agent.
Self-interest of litigants is thought to insure adequacy of information for the finder of fact to use.
The counter system is an inquisitorial system. The judge investigates the dispute, questions witnesses and independently seeks out evidence. The attorney’s role is less critical to the administration of justice.
SUBJECT MATTER JURISDICTION (CONTINUED)
Power of the court to hear cases of a general class
Determinates Dollar amount pled Criminal action Remedy requested Nature of problem
Initial Steps (CONTINUED)
Retention of counselPleading -- plaintiff 1. Complaint 2. Summons 3. Service of process (obtaining jurisdiction) 4. Reply if necessary
Pleading -- defendant 1. Answer 2. Demurrer or motion to dismiss 3. Cross-complaint or Counter-claim
A Sample Complaint (CONTINUED)
IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK
CIVIL NO. 9-1047
Cantwell Muckinfuss, PLAINTIFFvs. COMPLAINTKissy Angel, DEFENDANT
Comes now the Plaintiff and for his cause of action against the defendant alleges and states as follows:
1. This action is between plaintiff, who is a resident of the state of California and defendant who is a resident of the state of New York. There is diversity of citizenship between parties.
Sample Complaint continued (CONTINUED)
2. The amount in controversy, exclusive of interest and costs, exceeds the sum of $75,000.
3. On September 10th, 2002 plaintiff, Cantwell Muckinfuss, was exercising good driving habits and reasonable care in driving his car through the intersection of Broadway and Pennsylvania Ave in New York City, New York. When defendant, Kissy Angel, negligently drove her vehicle through a red light at the intersection and collided with plaintiff’s vehicle.
Sample Complaint continued (CONTINUED)
4. As a result of the collision plaintiff suffered severe physical injury, preventing him from working, and causing property damage to his car. He incurred costs including: $85,000 in medical bills, $25,000 in lost wages, and $9,000 in automobile repairs. Plaintiff demands judgment against the defendant for the sum of $119,000 plus interest at the maximum legal rate and the cost of this action.
BY [S]____________ROSIE F. RAGBIT ATTORNEY FOR PLAINTIFF100 MAIN STREET NEW YORK, NEW YORK
Judgment on the Pleadings (CONTINUED)
Motion to Dismiss
Can be made at any time after initial pleadings.
After discovery when there are no essential facts in disputeMid-Process of Civil LitigationMotions
Deposition (CONTINUED): Questioning of Parties and witnesses under oath
Interrogatories: Written questions to apposing party requesting written answers
Motion to Produce: Request for documents and things
Request for Admission: Request of opposing party to agree on certain factsMid-Process of Civil LitigationDiscovery
Purposes of Discovery (CONTINUED)
Educate each party
Fairness: Eliminate surpriseDiscovery
VOIR DIRE (CONTINUED)
Challenge for Cause
Peremptory ChallengesJury Selection
Moving party and degree of belief (CONTINUED)
Who has burden?
Nature of the burden?
Preponderance of the evidence
Clear and Convincing
Beyond a reasonable doubtJury Decision: BURDEN OF PROOF
34 states require less than unanimous in civil cases
California ¾ or 9
Unanimous verdict usually requiredJury Decision: Agreement