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ESSENTIALS OF ALTERNATIVE
DISPUTE RESOLUTION
_________________________________________________________________

Susan R
...

D
...
, Esq
...
Eight basic methods of ADR, and several hybrids, will be explained in detail
...
Finally, students will discuss the role of the paralegal in ADR and look at a case study
of how ADR is practiced in one urban jurisdiction
...
Nevertheless, the course avoids an
evangelistic endorsement of ADR, and instead asks students to evaluate disputes and disputants to
select the most appropriate method for resolving a matter
...

The course follows the outline of chapters as contained in the Table of Contents to the text
...
Nevertheless, instructors are encouraged to require students to read all the sections in each
of the chapters in the text, and to complete the exercises provided in the text
...
The final section of the
Guide contains answers to each of the learning objective/essay test questions
...
Instructors are encouraged to compose
exams comprising of both types of questions
...
In addition, many of the essay questions can be turned into short answer versions by
eliminating one of the requirements from the answer
...
This
Instructor’s Guide is also available on disk
...


Chapter One – Introduction to Alternative Dispute Resolution
The purpose of this chapter is to lay the conceptual and definitional groundwork for the
course
...
Five traditional ways to resolve disputes are covered, including litigation
and trial
...
The chapter concludes with a review
of the benefits and drawbacks of ADR
...


Chapter Two – Negotiation
Chapters Two through Six cover the methods of ADR
...

The purpose of Chapter Two is to establish the context for understanding how parties
involved in a dispute can resolve the matter themselves without resort to a judge, jury or
arbitrator
...
This chapter focuses on
negotiation as a method of resolving the issues in a lawsuit
...
The phases of a typical negotiation are covered in
depth and an extensive case study is presented
...
The point is not necessarily to build skills as a
negotiator but to experience firsthand the emotions and tension that usually accompanies the
task of trying to get something one wants from an opponent
...


Chapter Three – Mediation
Mediation is covered in two chapters
...
The origins of mediation are explored, and a
typical mediation session is reviewed, followed by a case study
...
Because mediation as a profession is growing
rapidly, mediator qualifications, training and standards of conduct are covered extensively,
with a look at the Model Standards of Conduct for Mediators
...


Chapter Four – Mediation Law and Policy
This chapter has been included due to the extensive legislation, both state and federal,
supporting the use of mediation
...
The chapter covers mediation legislation topically, and concludes with some skill
development in locating legislation on mediation
...


Chapter Five – Arbitration
The chapter on arbitration compares this method of ADR to mediation and also to litigation
...
A
typical arbitration is reviewed, and the roles of arbitrator, attorney/advocate, and paralegal
are explored
...


VI
...


Chapter Six covers four quasi-trial methods used to evaluate possible settlements, plus Early
Neutral Evaluation, a pretrial procedure available primarily in the federal courts
...
The chapter also scans
various ADR hybrids including med-arb, art-med and others, and concludes with a review of
two ADR programs gaining favor in more and more jurisdictions—multi-door courthouse and
settlement week
...
This chapter looks at five of these, including construction, labor and employment,
securities, family law, and environmental law
...
Sources of ADR services are covered
...


VIII
...
While this
topic is presented throughout the other chapters, this final look provides students the
opportunity to summarize and expand on what they have learned
...
Because ADR is practiced and regulated jurisdiction by jurisdiction, a case study of
ADR within one such jurisdiction is reviewed
...


Chapter One – Introduction to Alternative Dispute Resolution

A
...

2
...

4
...


B
...

Identify and describe four alternatives to litigation other than ADR and give
examples of each
...
”
Explain the benefits and drawbacks to using ADR over litigation
...
”

Additional Exercise and Assignment
Explore the Internet under topics such as “mediation,” “arbitration,” “ADR,” and other key
words found in Chapter One of the text, and compile a list of sites and resources available
...


II
...
In other words, don’t peek ahead
...


Learning Objectives/Essay Questions
1
...

3
...

5
...

7
...


B
...
(If this
is used as a test question, the instructor may have to provide the text of these rules
...

Define interest-based negotiating
...

Define cooperative negotiating
...

Identify the six phases of a negotiation
...

Explain how the Model Code of Professional Responsibility applies to attorneys
involved in negotiating a settlement for a client, when it declares, “a lawyer shall not
engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
...


Role-play a negotiation between the patent owner and the large manufacturer
described in the first paragraph of page 27
...
Try again, but this time assume that
the parties approach the negotiation with a more interest-based mindset
...
You are not bound by the outcome

6

Essentials of Alternative Dispute Resolution
Instructor’s Guide
described in the text
...

2
...
Assume that one party employs competitive tactics, while the other
employs cooperative tactics
...
Allot no more than ten minutes for each
negotiation
...
Analyze and
discuss the differences between the two negotiations, including how close each
negotiation got to a resolution, the goals that you and your opponent were trying to
attain, and whether those goals were compatible or incompatible
...


Answer the questions posed in paragraphs 1–7 on pages 45–47
...


Chapter Three – Mediation

A
...

2
...

4
...

6
...

8
...

B
...

Identify the three primary means by which mediation is initiated
...
Identify the goals of each phase
...

Identify at least five attributes of a successful mediator and explain why each is
important
...

Describe the role of the attorney/advocate in each phase of a mediation session
...
(Instructors can use
questions/dilemmas contained in the chart beginning on page 80 of the text, or
develop new ones
...


Additional Exercises and Assignments
1
...
(See
Appendix 6 for a list of topics that could be covered
...


Assume that you are the mediator for the case study that begins on page 63 of the
text
...

With four others, role-play a face-to-face mediation session between Tri-State and
Universal (see case study beginning on page 63), where two play the roles of the
attorneys, two play the roles of Phillips and Simmons, and one plays the role of the
mediator
...


Essentials of Alternative Dispute Resolution
Instructor’s Guide
4
...
In relating your experience to the class, please remember that
you are bound to the same standards of confidentiality as the other participants in the
mediation
...


Chapter Four – Mediation Law and Policy

A
...

2
...

4
...

6
...


B
...

Explain the purpose of the federal Administrative Dispute Resolution Act
...

Define the meaning of “District Court Expense and Delay Reduction Plan” and state
two required components of each district court plan
...
”
Describe the level of confidentiality typically given to mediation sessions and
agreements by state law [either typical state or student’s state of residence]
...


Additional Exercise and Assignment
Obtain and review the expense and delay reduction plan for the federal district court that
serves your local area, and summarize its provisions for the use of ADR
...


Chapter Five – Arbitration

A
...

2
...

4
...

6
...

8
...

10
...

12
...

14
...


Describe at least five ways in which arbitration differs from mediation
...

Identify by name the federal act that renders arbitration clauses in contracts
involving interstate commerce enforceable
...

Identify the three ways in which arbitration can be initiated
...
”
Define “submission
...

Identify two ways in which arbitration differs from litigation in terms of preparing
for the proceedings/trial
...

Define “award
...

Describe the role of the attorney in arbitration
...


Additional Exercises and Assignments

8

Essentials of Alternative Dispute Resolution
Instructor’s Guide

1
...


VI
...

Visit a major agency in your local area such as the AAA that provides arbitration
services in order to become familiar with the staff, facilities, and services provided
...


Chapter Six – Strategies for Settlement

When instructing this chapter, begin by reviewing the continuum on page 10 of the text
...


Learning Objectives/Essay Questions
1
...

• Describe who presides over each type of proceedings and their roles
...

• Discuss the types of situation where each type of proceeding would be most
appropriate and why
...


2
...

Define “multi-door courthouse
...
”
Given all the forms of ADR studied so far, place each on the Resolution Continuum
(on page 10) as to “Private Decision Made by the Parties,” “Advisory Decision,”
“Private 3rd Party Decision,” or “Legal/Public 3rd Party Decision
...

4
...


VII
...

A
...

2
...


State the name of the federal act under which most arbitration clauses in construction
contracts are enforceable
...

Describe at least four ways in which construction mediation differs from other types

Essentials of Alternative Dispute Resolution
Instructor’s Guide

4
...

6
...

8
...

10
...

12
...

B
...

Define “collective bargaining
...
For each characteristic,
explain why ADR is preferred over litigation
...

Explain the significance of the decision in Gilmer v
...
as
it relates to the enforcement of agreements to arbitrate employment disputes
...

Identify the four points in the criminal justice process where mediation can occur and
the purpose mediation serves at each point
...
”
Identify the form of ADR used most often to resolve securities disputes, and the
source of the authority to employ ADR in the securities context
...
Why are mediation and arbitration effective in resolving these problems?
Identify at least five types of disputes that community dispute resolution programs
are typically called upon to help resolve
...

2
...

Make a list of companies and agencies in your area, both public and private, that
provide mediation services to families in crisis
...


VIII
...


Learning Objectives/Essay Questions
1
...


3
...

5
...


Describe how a paralegal can be involved in ADR
...
(Instructors can use situations contained in the exercise box beginning
on page 200 of the text, or develop new ones
...

Indicate whether or not state civil court judges in your jurisdiction refer cases to
ADR
...

Describe how to obtain a mediation order in your jurisdiction for a filed lawsuit
...
Interview judges, ADR professionals, court administrators, ADR agency
heads, and others
...


Essentials of Alternative Dispute Resolution
Instructor’s Guide

11

ESSAY QUESTION/OBJECTIVE TEST QUESTIONS & ANSWERS
I
...


Explain how a dispute arises and distinguish a dispute from a grievance, giving examples of
both
...
Disputes are a normal
part of human interaction
...
A grievance, on the
other hand, is a dispute where someone claims that he or she is being denied a legal or
contract right and complains about it, usually in writing, to some authority, such as a
grievance committee, union, or a court of law
...
An example of a grievance is a formal complaint filed by a worker with her
employer’s grievance committee that she has been discriminated against due to gender
...

Identify and describe four alternatives to litigation other than ADR and give examples of
each
...
An example would be a neighbor who decides to ignore
the barking dog next door rather than complain to the city’s animal control division
...
For example, a car owner tries to convince a service station to
refund payment for faulty repairs rather than file a lawsuit in small claims court; a group of
children decides to beat up the playground bully rather than complain to their teacher
...

For example, a married couple seeks out the advice of a minister or marriage counselor when
they encounter a serious disagreement in their relationship
...
Examples include neighborhood dispute resolution centers
and company grievance committees
...


Define “mediation,” “arbitration,” “minitrial,” “summary jury trial,” and “moderated
settlement conference
...
The mediator helps the parties communicate and to find a solution to their dispute,
but has no authority to impose a settlement
...
The award may be
binding or nonbinding depending upon the circumstances
...
At the conclusion of the presentations, the lawyers depart, leaving

12

Essentials of Alternative Dispute Resolution
Instructor’s Guide
the executives to work out a settlement, if possible
...
The technique is used to evaluate what a real jury might decide
about the facts and evidence of a case
...


4
...

As compared with litigation, ADR is generally quicker, simpler and less expensive for
litigants
...
ADR is suited to defending the rights of the disadvantaged who do
not have the resources to litigate
...
Finally, ADR avoids the
win/lose of litigation and allows everyone to get something
...

On the other hand, ADR, unlike lawsuits, does not contribute to the development of
standards of public justice and fair play, called precedence
...


5
...
”
Most ADR takes place in the context of a lawsuit or a threatened lawsuit
...
Even disputes that do not involve a lawsuit have legal underpinnings in that the
parties may be trying to enforce rights guaranteed by law
...
Finally, ADR is often
governed and regulated by laws that require its use, set qualification and training standards for
ADR practitioners, establish and fund ADR programs, require confidentiality of ADR
proceedings and enforce settlement agreements
...


Which of the following reasons explains the increasing cost and incidences of lawsuits in the
United States? (Answer is G
...
The growth of the adult population due to the maturing of the post-war baby boom has
increased the number of potential litigants
...
Increasing economic competition means that companies are more likely to use lawsuits
to protect themselves from unfair competition
...
Inflation, especially in the 1970s and 1980s increased the cost of litigation
...
New laws passed in the last three decades have significantly increased the rights of
citizens and, therefore, the types of actions that they can defend in a court of law
...
C and D, above
F
...
A, B, C, and D, above
...


Generally speaking, what percentage of lawsuits are settled before trial? (Answer is C
...

B
...

D
...


When a court of law renders a verdict based on how similar cases have been decided in the
past, it is relying on: (Answer is C
...

B
...

D
...


At least one out of three
At least one out of five
Less than one in ten
Less than one in twenty
...


Which of the following types of ADR result in an ultimate decision by the parties to the
dispute rather than a third party? (Answer is F
...

B
...

D
...

F
...


Mediation
Summary Jury Trial
Mini-Trial
Moderated Settlement Conference
A and C, above
A, B, C and D, above
B and D, above
...


Chapter Two – Negotiation

1
...
(If this is used as a
test question, the instructor may have to provide the text of these rules
...
Rule 16 also provides that parties may
consider the advisability of referring matters to a magistrate or master
...
If a settlement offer is
turned down by the plaintiff and the plaintiff prevails at trial but is awarded less than the
defendant’s pretrial offer, the plaintiff must pay the defendant’s cost incurred from the time
of offer
...
The concern is that offers, if

14

Essentials of Alternative Dispute Resolution
Instructor’s Guide
admissible, could be viewed as an admission of liability, and thus could discourage offers
...


Define distributive negotiating
...
Therefore, the more one side gets, the less will
be left for the other
...
Negotiating focuses on what each party is willing to give or take in
order to settle
...


3
...

Interest-based negotiating is collaborative and assumes that underneath the issues on the table
are other interests that need to be identified and satisfied
...


4
...

Competitive negotiating is viewed as a battle to be won
...
The interests of the parties are seen as antagonistic
...
The
competitive negotiator tends to see all disputes as distributive in nature
...
)

5
...

Cooperative negotiating attempts to identify and create several alternative solutions to a
dispute so as to leave all the parties at least somewhat satisfied with the outcome
...
The cooperative negotiator tends to be an interest-based
bargainer
...
)

6
...

In disputes where issues are clear-cut, the stakes are well defined, where one party is
significantly more powerful than the other, and/or the parties have no ongoing relationship,
a competitive approach can quickly bring a dispute to its inevitable conclusion
...
In addition, a
competitive negotiator may be better prepared to deal with the competitive tactics used by
the other side and is less likely to be rattled or misled by such tactics
...
A
competitive negotiator is less likely to thoroughly analyze the merits of the dispute and
identify all possible solutions
...
In addition, a competitive
style impedes the flow of important information between the parties, which can result in a
loss for one or both parties
...


Essentials of Alternative Dispute Resolution
Instructor’s Guide

15

Cooperative negotiating tends to achieve settlements that are satisfying to all the parties
...

On the other hand, a cooperative negotiator may be less likely to deal effectively with
competitive tactics from the other side and, therefore, give up too much
...
Cooperative
negotiation requires more skill than competitive negotiating, and also takes more time and
money in that the negotiator will thoroughly analyze the case and identify all possible
options
...

7
...

A
...

C
...

E
...


8
...

Preliminary Phase: establish the tone of the negotiation and a working
relationship among the attorneys for the parties, and gain a better understanding of
the facts and legal issues involved
...
Gain as much information from the other side as possible while giving up as
little as possible
...

Closing Phase: Reach a settlement by closing any gaps that remain
...


Explain how the Model Code of Professional Responsibility applies to attorneys involved in
negotiating a settlement for a client, when it declares, “a lawyer shall not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation
...
They will insist that the offer on the table is
the final one or that their client has not authorized them to go higher (or lower), when in
fact, this is not the case
...
In essence, effective negotiating is the ability to mislead and at the
same time not to be misled
...
Commentators
tend to view negotiating as more art than fiction and therefore the rules are made up as one
goes along
...


Objective Test Questions: Chapter Two – Negotiation
1
...
”
(Cooperative/interest based negotiating)

16

Essentials of Alternative Dispute Resolution
Instructor’s Guide
•
•

“Defines the problem as being the other party’s actions and attitudes
...
”
(Cooperative/interest-based negotiating)

•

“Most effective in disputes that involve a finite sum of money
...
” (Cooperative/interest-based negotiating)

•

“Adversarial
...
” (Cooperative/interest-based negotiating)

•
2
...
” (Competitive/distributive negotiating)

“Most effective in disputes where the parties have an ongoing relationship
...
(Answer is C
...

B
...

D
...


Rules of evidence permit a defendant to inform the jury that the plaintiff rejected the
defendant’s offer of settlement
...

Judges and juries are allowed to award interest to the plaintiff from the date of the
plaintiff’s loss
...


Why are lawsuits difficult to settle early in the dispute rather than “on the courthouse steps?”
Choose the answer that least explains why
...
)
A
...

C
...


Early settlement sessions require careful planning and litigators often don’t prepare
adequately
...

Clients usually want to settle early, but attorneys do not
...


III
...


Describe at least three ways in which mediation differs from negotiation
...

B
...
By comparison, negotiation usually takes place among the
representatives of the parties rather than the litigants themselves
...

D
...


2
...


The parties agree to mediate at the time that the dispute arises
...

A court orders the parties to mediate
...

A
...

C
...


involvement in the dispute, and who generally has no authority to decide the case
...

Third, mediation is generally an extra procedure inserted into the process of
litigation, whether voluntary or ordered by a court
...

Fourth, mediation is usually a face-to-face structured process that takes place in the
space of one day or less
...

Negotiation, on the other hand, is informal and takes places in many episodes and in
various ways over the course of a lawsuit
...


Identify the three primary means by which mediation is initiated
...

B
...


17

Opening session: introduce the participants, review the process, establish the rules
to be followed, permit the parties to tell their version of the dispute, exchange
information, allow the parties to express how they feel, and quickly identify areas of
agreement and disagreement
...

Closure: point at which the mediator determines if the parties have reached a
settlement that satisfies each of them and, if so, to hopefully commit the settlement
to writing
...


Identify the three critical matters that every mediator should stress to participants at the
beginning of a mediation, and why each is critical
...

B
...


The mediator will not impose a settlement on the parties or make up their
minds for them
...

The process will be confidential in that the mediator will not reveal to the parties
what the other side has told the mediator during private caucus
...

Finally, the mediator will not testify in court for either side about anything said or
done related to the mediation
...

Decision-makers for the parties must attend the mediation
...


18

5
...

A
...

C
...

E
...


G
...


6
...

A
...

C
...

E
...


7
...

Advocate for the process: By the mediator believing in and advocating the process,
especially when the parties seem to have reached an impasse, the mediation is more
likely to be successful
...

Persuasive: Through persuasion, the mediator exacts a series of small concessions
from each of the parties that leads ultimately to a settlement that embodies the
essential needs of the parties
...

Varies the approach: Because disputes and parties differ, the mediator must use
proper techniques to focus on what is important in each matter, e
...
, settlement
amount and payoff in a personal injury suit involving an insurance company versus a
custody matter where the parties must continue to relate to one another in the future
...

Declare an impasse: The mediator must exercise the insight to know when the
parties are truly unable to agree, or where a settlement is clearly unfair/illegal or
represents an acquiescence by one of the parties
...

Determine if negotiation or mediation is appropriate prior to filing suit
...

Select a competent mediator
...

Prepare the client for mediation
...

A
...

C
...


Prepare and give a persuasive opening statement or assist the client to do so,
that will strike a balance between an interest in settlement and a willingness to
litigate
...

Meet privately with the mediator if necessary to devise a strategy to help the
client more realistically assess the strengths and weaknesses of his or her case
...


Essentials of Alternative Dispute Resolution
Instructor’s Guide

8
...
[Instructors can use questions/dilemmas contained in the
chart beginning on page 80 of the text, or develop new ones
...
For the exam, select several
questions/dilemmas
...


9
...

Mediation is more likely to succeed where the parties themselves have developed the rules
rather than having them imposed or adopted by an outside source
...
Please indicate whether each of the following statements is true or false
...

A
...

B
...


True

C
...


False

D
...


False

E
...


True

F
...


False

G
...


False

H
...


False

I
...


False

J
...


False

K
...


False

L
...

2
...


3
...
Name at least
three problems with negotiation that mediation can mitigate
...

B
...

D
...


No deadlines or sense of urgency in negotiation
Interrupted and distorted communication from advocate to client and back again
No opportunity prior to taking a deposition to hear what the other party is thinking
Personality conflicts between the negotiators are exacerbated by negotiation
Easily influenced by fee arrangements and other self interest of the advocates

4
...


IV
...


21

Define “negotiated rulemaking,” and explain how it works
...
When a rule is proposed, the head of the agency that will enforce the law will
publish its intention to establish a committee for rulemaking
...
A facilitator will be selected who will impartially assist the members in
conducting negotiations and discussions in order to draft a rule that is both effective and will
have the broadest base of support possible
...


Explain the purpose of the federal Administrative Dispute Resolution Act
...


3
...

This Act was passed by Congress to help the states provide community-based dispute
resolution mechanisms to promote the expeditious settlement of minor disputes
...


4
...

These are plans required by the Civil Justice Reform Act of 1990 whereby each federal
district court is required to devise a plan to curtail the costs and shorten the time involved in
most litigation
...
Also required is a neutral
evaluation program wherein the legal and factual basis of each case is presented to a neutral
court representative at a nonbinding conference conducted early in the litigation
...


5
...

Court-annexed ADR refers to state statutes that require state courts to promote the use of
ADR in order to reduce the cost of resolving disputes and to make justice more accessible
...


Describe the level of confidentially typically given to mediation sessions and agreements by
state law [either typical state or student’s state of residence], and the purpose of
confidentiality
...
A mediator cannot be forced to testify
in court about anything that has transpired in the case or the mediation
...
In
addition, offers to settle a claim (or refusal to accept an offer) during mediation are not
admissible by either party as evidence of anything
...


7
...

The statute of limitations is the period of time between the event that gives rise to a legal
claim and the date when a court or administrative agency can no longer hear the claim and
provide a remedy
...

Typically, mediation suspends the running of the statute
...
Although these laws are not uniform from state to state, typically the
statutory period is suspended when one party requests mediation or conciliation and the other
party agrees
...

State two ways in which statutes dealing with mediation attempt to regulate its use and
practice
...

B
...

D
...

2
...

B
...


3
...


Labor and employment matters
Civil rights
Domestic relations
...

•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Landlord-tenant disputes
Small claims
Automobile warranty claims
Divorce
Workers’ compensation
Land use and environmental concerns
Funeral and cemetery contracts
Planning and zoning
Eminent domain
Franchise agreements
Water rights
Home construction and remodeling
Debtor/creditor
Doctor/patient
Homeowner and condo associations
...


23

What is the single most important factor that will dramatically increase the use of ADR,
including mediation, in a jurisdiction?
Court-annexed ADR
...


What are the two ways that a party can enforce a mediated settlement agreement in most
jurisdictions
...

B
...


Filing a lawsuit to enforce the agreement as a contract
Filing a contempt of court action where the court has entered the agreement as its
judgment in a case
...

B
...


Wanton or willful misconduct
Conduct that is malicious or in bad faith
Conduct that substantially infringes on the rights, safety or property of others
...


Chapter Five – Arbitration

1
...

A
...

C
...

E
...


Arbitration involves a decision by a neutral third party, whereas in mediation the
parties decide for themselves
...

In arbitration the focus is on the arbitrator whom the parties try to persuade
...

An arbitrator is often selected because he or she is experienced in the industry of the
disputants or subject matter of the dispute
...

Arbitrators are generally exempt from civil liability for failure to perform their duties
with care or skill, whereas mediators can be held liable in negligence for their conduct
...

Resolution of labor disputes under the terms of a collective bargaining agreement
...


Identify by name the federal act that renders arbitration clauses in contracts involving
interstate commerce enforceable
...


4
...

Initiation – one or both parties to a dispute either make a written demand on the other to
arbitrate, or they invoke a contract provision requiring arbitration in the event of a dispute
arising under the contract
...
Where a written demand is made, the other party will answer
the demand in writing pursuant to the rules under which the arbitration is to proceed
...
The
agency typically will provide the rules and procedures to follow and will provide
administrative assistance to facilitate the arbitration similar to the services provided by a
court clerk
...

Preparation – the period of assembling the evidence and conducting discovery, preparing
witnesses and in general getting ready to put on the facts and arguments in support of one’s
case
...
There generally is no written record
made of the proceeding nor are oaths typically administered to witnesses
...

Decision making and award – the arbitrator may make the decision at the end of the
hearing but generally within 30 days, based on the evidence and arguments and using standards
selected by the parties, such as “fairness” or “applicable law
...
The decision of
the arbitrator is called an award and is usually written
...


Identify the three ways in which arbitration can be initiated
...

B
...


6
...


Define “demand
...
The demand will identify the
contract, and state the nature of the dispute, the relief sought, and the rules that will govern
the arbitration process
...


Define “submission
...
The
submission will state the nature of the dispute, the relief sought, and the rules that will govern
the arbitration process, including whether the arbitration will be binding or nonbinding
...


Identify at least three national organizations that provide arbitration administration services
...

B
...

D
...


B
...
An arbitrator is free to fashion a decision based on what is fair, rather
than on how similar cases have been decided in the past
...
)
Because the arbitrator is experienced in the subject matter of the dispute there
is no need to assemble evidence and aids to educate the tribunal
...
)
There is no need to prepare extensive legal arguments and assemble legal
proof because the award is based on factors other than merely precedence
...
)
Only evidence that is absolutely necessary is discoverable in arbitration;
therefore, discovery is not the fishing expedition normally associated with
litigation
...
)
Parties are encouraged to stipulate to as many facts as possible in order to
center the hearing on the facts and issues in dispute
...

A
...

C
...

E
...

G
...


American Arbitration Association
Judicial Arbitration & Mediation Service (JAMS/Endispute)
Center for Public Resources (CPR)
National Association of Securities Dealers (NASD)
...

A
...


25

Documents are treated as self-authenticating – no testimony is required to
authenticate them
...

Testifying witnesses will be introduced via written biographical information rather
than via questions to establish identity and background
...

Arbitrator is free to hear any evidence deemed necessary to understand the dispute
regardless of its admissibility in a trial; e
...
, hearsay is admissible in an arbitration
hearing
...

Straightforward presentation of a case is the norm rather than using exaggeration,
concealment, and raising legal technicalities to delay and cover up weaknesses in a
case, which is typical of trial
...
”
Decision of the arbitrator committed to writing but generally not with a written opinion
...


12
...

•
•
•
•
•
•
•
•
•

13
...

An arbitrator can retain jurisdiction over a dispute after the award, at the request of the
parties, whereas a civil trial judge loses jurisdiction once judgment is entered
...

Despite restrictions on the granting of punitive damages, an arbitrator has a much wider
range of remedies available than a civil trial judge or jury in that he or she can fashion an
equitable remedy to suit the situation
...

An arbitrator’s power comes not from the state but from the agreement of the parties
...

An arbitrator’s power is based in his or her expertise in the subject matter of the dispute
which enables the arbitrator to shape how the case is presented
...

An arbitrator can render an award tailored to the case whereas a civil judge must always
consider precedence or face being overturned on appeal
...

The attorney plays a critical role in arbitration, which usually involves parties who are
business persons, and a case with complex issues and a significant amount of money and
property at stake
...
When presented with a dispute, an
attorney should determine if it is subject to an ADR clause and, if so, to prepare a written
demand
...
If they agree, the attorney should prepare a submission
...

The attorney assists the client to select an arbitrator, prepares statements of the client’s case
in order to influence the arbitrator, and to persuade the arbitrator to admit favorable evidence
and deny admission of unfavorable evidence
...
At the conclusion
of discovery, the attorney prepares hearing exhibits, briefs witnesses, drafts an opening
statement, and generally prepares for the hearing
...
After the
award, the attorney will counsel the client regarding whether to appeal and, if so, will prepare
the appeal
...


14
...

A paralegal will assist in the preparation of demands, submissions, gathering and assembling
documents and other discovery, coordinating transmission of documents to the other side,

Essentials of Alternative Dispute Resolution
Instructor’s Guide

27

evaluating and summarizing documents and items received from the other party, preparing
subpoenas, keeping track of schedules, preparing hearing exhibits, and other similar tasks
...
He or she will be
responsible for coordinating administrative matters with the arbitration sponsor and
attending administrative hearings on behalf of the client
...
A paralegal can also
present some or all of the case, because an arbitration is not a “legal” proceeding
...
They can also serve
as arbitrators, especially when they have expertise in the subject matter of the dispute
...


Please indicate whether each of the following statements is true or false
...

A
...


True

B
...


True

C
...


True

D
...


False

E
...


False

F
...


False

G
...


True

H
...


False

I
...


False

J
...


True

K
...


False

L
...


True

M
...


True

N
...


False

O
...


False

P
...


False

Q
...

R
...


False

S
...


True

T
...


True

U
...


False

V
...


True

W
...


VI
...


With regard to minitrial, SJT, MSC, and private judging:
A
...

B
...

C
...

D
...

(For answers to A–D, above, please refer to the chart beginning on page 13 of the text
...


Discuss the advantages of each type of proceeding over both mediation and
arbitration
...
By comparison, the neutral makes the final
decision in arbitration, and exerts considerable influence over the parties in
mediation
...
Finally,
mini-trial uses attorneys in the capacity of trial advocate, whereas mediation and
arbitration tends to discount the role of the attorney
...
SJT results in an advisory opinion that
enables business executives to assess their chances at trial
...
SJT also has the advantage of
providing more insight after mediation has failed but before a trial on the merits
...


Essentials of Alternative Dispute Resolution
Instructor’s Guide

29

Advantages of Moderated Settlement Conference: MSC has all the advantages
of SJT, plus it is even more abbreviated than mediation, arbitration or any of the
trial-like forms of ADR
...
Likewise, in arbitration, the new litigator is playing for keeps and
could lose the case due to inexperience
...
This may be preferable where one
side has a really strong case, or where one of the parties refuses to mediate
...
Finally, private judging is preferable to
arbitration when precedence is on your side
...

2
...

B
...

D
...


3
...

Arb-Med: Method that begins with arbitration, but before reaching a final decision,
the arbitrator attempts to mediate the dispute, or at least those issues where a
negotiated settlement seems most likely
...

Concilio-Arbitration: Method that involves mediation, after which the mediator
issues a draft award on any matters left unresolved
...

Baseball Arbitration: Variation on standard arbitration where the arbitrator
receives an offer submitted by each of the parties after presentation of each party’s
case, and decides on which offer should constitute the award
...
”
Court-created dispute resolution system that encompasses a variety of ADR processes and
recommends the method most appropriate to each case after evaluation of a case by a case
intake specialist
...


4
...
”
Court-created dispute resolution system in which the civil courts in a jurisdiction will suspend
normal operation for one week and make the courthouse building and personnel available to
litigants who desire to have their cases considered by a neutral third party who is generally a
volunteer
...


30

5
...
”
(Please refer to continuum on page 10 for the answer to this question
...


For each of the situations listed below, circle the most appropriate form of ADR of the two
choices offered
...
)
A
...
Party wants to avoid negotiating with the other side
C
...
Your opponent makes a pit bull look like a pussy
cat
E
...
Legal precedence is strongly against you
G
...
Highly complex business case between two large
corporations
I
...
Legal remedies are limited
K
...
Negotiations are at an impasse
M
...
You’re having trouble deciding how to distill a
complicated case down to the essential issues and
facts
O
...
You want maximum control over choosing the third
party who gets to decide the case

Mediation
Arbitration

Arbitration
Summary
Jury Trial

Arb-then-Med

Baseball
Arbitration

Private Judging

Mediation

Summary
Minitrial
Jury Trial
Mediation
Arbitration
Moderated
Litigation
Settlement Conference
Minitrial
Private Judging
Arbitration

Summary
Jury Trial
Mediation
Minitrial

Private Judging
Moderated
Settlement Conference
Med-Arb
Moderated
Settlement Conference
Arbitration
Adjudication
Summary
Jury Trial

Arbitration

Mediation

Concilio-Arb

Arbitration
(3-person panel)

Private Judging

Essentials of Alternative Dispute Resolution
Instructor’s Guide
Q
...
Insurance company is at least partially liable to pay
damages
S
...


31

Mediation
Minitrial

Arbitration
Arbitration

Summary
Jury Trial

What is the name of the program devised by federal courts to help motivate litigants to
pursue settlement of their cases earlier rather than later in the life of their lawsuits?
Early Neutral Evaluation (ENE)
...


Chapter Seven – Application of ADR to Specific Disputes

1
...

Federal Arbitration Act
...


Describe at least five characteristics of a construction dispute that make litigation
cumbersome and costly
...

B
...

D
...


F
...


Describe at least four ways in which construction mediation differs from other types of
business mediation
...

B
...

D
...


4
...
It takes time and expense to assemble the facts and
relate them to a jury
...

They generate masses of paperwork that is subject to discovery when a dispute erupts
into litigation
...

They involve many issues that are highly technical and concern engineering
principles not easily understood by lay people making up a typical jury
...
In
addition, the complexity means more pretrial hearings and evidentiary disputes,
which adds to the time and cost of litigation
...


Mediator is likely to be an expert in and have substantial experience in the
construction industry
...

Construction mediation is document-intensive, and the mediator will likely be called
upon to facilitate the amicable exchange of discovery
...

Private caucuses are apt to involve shuttling between several different parties
...


Define “collective bargaining
...

These agreements usually cover several years and deal with the conditions of employment
...


Identify at least five characteristics of a typical employment dispute that bear on why ADR
may be the preferable method for resolution
...

A
...


C
...

E
...


6
...
Therefore, ADR, which is generally a confidential forum, is
preferred
...

Employment disputes are costly to litigate and often hinge on circumstantial
evidence that is expensive to assemble and results in the loss of significant executive
time
...

Employment lawsuits frequently involve large jury verdicts because jurors identify
with employee/plaintiffs
...

Employment disputes usually do not involve written agreements between the parties
to arbitrate or mediate conflicts, especially in the case of smaller employers
...
Offering to
participate in ADR short circuits this process
...


In a wrongful discharge dispute, explain why ADR is likely to be unsuccessful if the issue of
whether employment is “at-will” remains unresolved
...
This is a legal issue which ADR is not designed to resolve, yet if not resolved prevents
ADR from going forward in a meaningful way
...


Explain the significance of the decision in Gilmer v
...
as it
relates to the enforcement of agreements to arbitrate employment disputes
...
The concern was that agreeing to
arbitration would force the employee to forgo substantive rights afforded by the statute in
question
...
The Court also
said that arbitration of a statutory claim is appropriate unless the statute itself said otherwise
...


34

Essentials of Alternative Dispute Resolution
Instructor’s Guide

8
...

•
•
•
•
•
•
•
•
9
...

Family mediation is often not attended by attorneys for the parties, and sometimes such
attendance is actually prohibited by law
...

Parties are often not well informed about their legal rights, especially if they are acting
pro se, which is increasingly the case in family disputes, often putting the mediator in the
role of explaining the law
...
”
Family law mediation is often highly time sensitive and urgent where the well being of
children is involved and/or the parties cannot afford a trial
...

Because family law disputes are almost always highly charged with emotion, mediation is
often characterized by displays of emotion and must provide an outlet for these feelings
in order to reach a resolution
...


Identify the four points in the criminal justice process where mediation can occur and the
purpose mediation serves at each point
...

B
...


D
...
Community-based ADR can resolve disputes before they
erupt into violence
...

After a crime has occurred, but before trial, the following can take place:
• Mediation can facilitate bargaining between the prosecutor and counsel for the
offender and will involve the offender
...

• Likewise, if victims participate, mediation can lead to a dropping of or reduction
in the charges if the victim is satisfied that the offender is truly remorseful and
understands the gravity of his or her actions and also agrees to repay the victim
in some appropriate manner
...

• Mediation can also be used effectively to renegotiate probation where the
offender has not complied with its terms, thus leading to greater compliance in
the future because the offender has participated in the process
...
Mediation can also be used by the victim and the offender to
negotiate at least part of the sentence, which the judge can take under advisement
before pronouncing sentence
...

During post-sentencing, mediation in prisons facilitates meetings between violent
offenders and their victims
...

10
...
”
A security dispute is any dispute arising between investors and brokers, between member firms
in a stock exchange and their employees, and between member firms
...


11
...

Arbitration is the ADR method used most often to resolve securities disputes
...
Also, insofar as many securities
transactions involve interstate commerce, the Federal Arbitration Act also provides
authority
...


Identify and explain three reasons why environmental disputes are difficult to resolve
...


B
...


13
...
Yet, only a few of these parties actually sit down at
the bargaining table, leaving the others feeling unrepresented, which in turn can delay
resolution and create problems with enforcing any agreement reached
...

Public policy issues: Because pollution affects the health and well-being of people
often over a wide area now and into the future, an act of pollution can result in
dozens of divergent actions in many forums
...

Complexity: In addition to the above, environmental disputes almost always
involve complex scientific and technical matters beyond the understanding of the
typical judge and jury
...


Identify at least five types of disputes that community dispute resolution programs are
typically called upon to help resolve
...
)

Objective Test Questions: Chapter Seven – Application of ADR to Specific Disputes
1
...


36

Essentials of Alternative Dispute Resolution
Instructor’s Guide
•
•
•
•
•
•
•
•
•
•
•
•
•
•

2
...


What is the primary difference between sexual harassment claims on the one hand and
discrimination and wrongful discharge claims on the other that makes sexual harassment
claims especially amenable to ADR?
The victim wants to keep his or her job and not be penalized for bringing a claim, which
unlike litigation can be raised in an ADR proceeding and factored into the remedy
...


3
...

(Refer to the list on page 175 of the text for possible answers
...


Chapter Eight – The Role of the Paralegal in ADR

1
...

Paralegals provide staff support services to attorneys who use ADR to help clients resolve
disputes
...
Paralegals accompany clients to administrative hearings and ADR proceedings where
nonattorney advocates are allowed and in some cases they may serve as advocates in ADR
proceedings before government and employer dispute resolution forums
...


2
...

(Instructors may want to provide students with the text of the Model Code, although this is
not a requirement
...
)
Situation 1:

Per Canon 1, the paralegal should gain training in ADR and how it is used and

Essentials of Alternative Dispute Resolution
Instructor’s Guide

Situation 2:

Situation 3:
Situation 4:
Situation 5:

Situation 6:

Situation 7:

3
...

Per Canon 2, EC-2
...
Here the
paralegal should inform the attorney of the mistake and the names of the
recommended mediators so that the attorney can determine an appropriate
response if the court recommends them
...
If asked to participate, the paralegal should resign
...

Per Canon 4, the paralegal should support the effort by recommending open
cases that could benefit from settlement week, and also by asking the
employer to permit the paralegal to volunteer his or her services to the
settlement week coordinators
...
Here, the paralegal should inform the attorney involved with the
case of the remarks made to the other side so that the attorney can assess and
mitigate any damage
...


Distinguish between an ADR neutral providing legal information to a party and giving legal
advice, and give an example of each
...
He or she may also recommend
attorneys and other individuals who can legally provide advice
...
But the neutral may not offer legal opinions or advice on
how to proceed in a legal matter
...
In response, the neutral offers a
brochure on the topic prepared by the a local association of family law attorneys, and
recommends the names of three competent family law attorneys who take low income
clients
...
But
the neutral may not counsel the party on what items of the party’s property constitute the
marital estate or how to obtain them in the negotiations to follow
...


Indicate whether or not state civil court judges in your jurisdiction refer cases to ADR
...

(Because this question is specific to the jurisdiction of the student, the instructor will have to
devise an appropriate response to this question
...


Describe how to obtain a mediation order in your jurisdiction for a filed lawsuit
...
)

38

Essentials of Alternative Dispute Resolution
Instructor’s Guide

Objective Test Questions: Chapter Eight – The Role of the Paralegal in ADR
1
...


2
...
”
A document prepared by an attorney that outlines the strengths of a client’s case and sets
forth a realistic and supportable rationale for what the client wants, and which is shared with
the other side to facilitate and influence the process of negotiation or mediation
...


Why is it important for a paralegal to understand the ADR technique being used in a
particular case?
In order to more effectively lend support to the client, the attorney and the process
...


Name at least one code of rules [not already mentioned in this exam] that provides guidance
to paralegals who support ADR and the group that has promulgated the code
...

B
...


5
...
Why?
Because the mediator has been an integral part of the settlement process and is more apt to
have a clear understanding of what the parties want
...


39

Rules governing the professional responsibility of mediators generally prohibit mediators
from giving legal advice to participants for which of the following reasons? (Answer is H
...

B
...

D
...

F
...

H
...


The mediator may not be licensed to practice law
...

Mediators are likely to have a distorted view of the facts of a case because that view
is based on hearsay and other unsubstantiated claims made by the parties
...

Mediators are paid for their services
...

A, B, and D, above
...

B, C, and E, above

---