Conflicts & Positions
What is conflict?
Actual or perceived clash of interests or perspectives (exists as long as one parties believes it to exist)
What are the basic characteristics of Arbitration?
Parties agree to submit their dispute to a neutral third-party. Can be binding or non-binding. Not regulated, but requires certification through organizations like AAA. Based on K (usually adhesion K).
What are the elements of negotiation?
Influence and Persuasion: Communication [7% words; 38% voice; and 55% body language]
Resistance: Reactive devaluation - cognitive bias that occurs when a proposal is devalued if it appears to originate from an antagonist [antidote is self-awareness]
Conflict
Who is a mediator? What is the role of the mediator?
Unaffiliated third party who assists parties’ communication and negotiation during a confidential process to reach a voluntary agreement. Most states require mediators to go through credentialed mediation training.
What are the advantage(s) and disadvantage(s) of med-arb?
Advantage: Guaranteed outcome
Disadvantage: Same person serving as mediator and arbitrator means will learn secrets as mediator that can influence arbitration; Parties may not be willing to disclose all information in mediation
What is a dispute?
Concrete manifestations of an underlying conflict
What are the key elements of an Arbitration Agreement?
Consent; Institution & Rules; Scope of the Dispute; Seat of Arbitration (Choice of Law, Procedural Law, National Court that will aid/annul); Language; Method of appointment; number arbitrators; qualifications of arbitrators;Choice of law
What is a typical reaction if the first offer is incredibly unfair?
A party will flinch to erase the anchor. Typically then ask for some objective factors that they can point to.
What is the difference between classic facilitative and classic evaluative?
Facilitative: Draws out the parties. Centers on the parties and getting them to come to agreement themselves.
Evaluative: Proposes or suggests settlements. Centers on mediator directing the parties. Conducts BATNA for parties as well as analyze strengths and weaknesses.
What is arb-med?
Arbitrator makes a decision, but does not release it to the parties. The parties then proceed to mediation. Issue is that the mediator can then attempt to guide the parties to the award they had done.
What is the difference between a position and an interest?
A position is what someone says they want or is entitled to have. An interest is the need, desire, concern, fear, or other motive that underlies someone's position.
What are the two main provisions of the FAA? What are the results of the FAA?
Sections 2 and 10: deals with validity of provision and vacation of arbitration award, respectively.
Parties must obtain order to compel arbitration; parties had to stay litigation in courts; Judicial presumption favoring arbitration; Mechanisms to either affirm or vacate arbitration award; Judicial review is limited; Thus will stay proceeding in court if: (1) Valid written agreement to arbitrate; (2) Dispute falls within scope of agreement
What are the different conflict styles?
Competing
Collaborating
Avoiding
Accommodating
Compromising
Difference between a narrow and broad mediator.
Broad: Mediator might consider psychological issues; encourage parties to consider political or social issues; how treatment of parties affect public perception; how case will affect institutional legitimacy of government entities
Narrow: Mediator focuses with parties on legal issues
What are ways you can help a court be more likely to enforce a consensual dispute resolution clause?
Define time for completion
Define mechanism to initiate dispute resolution
Define rules
Define how process is undertaken
Define carveouts
Define consequences for failure to comply
Make as unambiguous as possible
What are the three dimensions of Conflict? Define them.
Cognitive Dimension: Belief that one’s own needs, interest, wants, or values are incompatible with someone else’s.
Emotional dimension: Feeling fear, sadness, bitterness, anger, or hopelessness towards someone signals a conflict.
Behavioral dimension: Actions taken to express belief or feelings (may be acts taken at someone else's expense)
What are the defenses to enforcement of arbitration agreements? What are the defenses to arbitration awards?
Agreements: State law defenses for Ks; Fraud in procurement; Duress; Mistake; Lack of Capacity; Unconscionability (procedural or substantive); Separability doctrine requires challenge against provision itself, where challenge agreement as a whole is decided by arbitrator
Awards: Statutory grounds (Fraud by clear and convincing evidence); Evident partiality or corruption of arbitrator; Arbitrator failed to stay case so party could present case; Arbitrator exceeded scope of power; manifest disregard for law; contrary to public policy; “Essence” Test; Arbitrary and Capricious; Irrational
Bonus points: Errors of Law or fact; serious misconstruction of K; and failure to explain reasoning are NOT reasons to vacate award
Define: (1) ZOPA; (2) BATNA; (3) Reservation Point; and (4) Aspirational Point
Zone of possible agreement;
Best alternative to no agreement - central source of power
Bottom line (walk away point)
Best deal that could possibly be made
Basic Stages of Mediation
Pre-mediation prep: select mediator; prepare and plan with client; make pre-mediation submissions; pre-mediation conferences with mediator
Orientation-agreeing to mediate where lay out rules
Understand the problem
Generate/Assess Options
Reaching Agreement
Closing Mediation
Implementing Agreement
What is Collaborative Law?
Lawyer only represents client to extent client willing to resolve case on collaborative and consensual basis with other side. Lawyer will withdraw if client pursues litigation. Similar to cooperative law, but lawyer does not automatically withdraw in cooperative law.
What can resolution be based on?
Power: Who has more power in the conflict?; How much money or what lawyers they have?
Rights: What does the law recognize?
Interests: What are the parties underlying concerns?; What is motivating the conflict that led to the dispute?
What is the significance of the New York Convention?
International Treaty that seeks to overcome judicial hostility to international arbitration. Provides presumptive validity. Party rejecting agreement has burden to show invalid. Annulment of award controlled by law of seat of arbitration. International refusal to recognize or enforce award governed by NY Convention if adopted, or state law if not adopted.
What are the five basic skills of negotiation?
Assertiveness
Empathy
Flexibility
Social Intuition
Ethicality
What does Texas do regarding mediation talks?
Texas has mediation privilege. Does not permit the discussions inside of mediation to be brought into court.
What are ombuds?
Has different models (Classical [executive and legislative], Organizational, and Advocate)
Many roles (Auditor/safety valve/whistle blower; couselor/investigator; advocate/mediator)
Typically used in long-term care situations
Not adjudicative or adversarial, more akin to counselor/advocate