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ALTERNATE DISPUTE RESOLUTION

ALTERNATE DISPUTE RESOLUTION. Types of ADR available. Negotiation Mediation / Conciliation Arbitration. Negotiation. Parties come together informally. With or without their lawyers. They attempt to resolve their dispute. No neutral third party involved.

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ALTERNATE DISPUTE RESOLUTION

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  1. ALTERNATE DISPUTE RESOLUTION

  2. Types of ADR available Negotiation Mediation / Conciliation Arbitration

  3. Negotiation • Parties come together informally. • With or without their lawyers. • They attempt to resolve their dispute. • No neutral third party involved. • Often parties must compromise for the negotiation to succeed.

  4. Conciliation Third party assists parties in reconciling differences Conciliators, do no recommend solutions

  5. Mediation • Goals: • To get the disputants to listen to each other. • To get them to arrive at a fair and equitable solution to their dispute. • Mediator makes no final decision, but does suggest solutions. • A facilitator of communication between the parties. • If solution reached, usually reduced to a written contract. • What was said at the mediation is confidential. • Common uses: • Collective bargaining disputes. • Insurance claims. • Environmental disputes.

  6. Arbitration • Resolution of a dispute by a neutral third party(s) • Arbitrator not constrained by precedent, as is a judge. • Much more likely to reach a compromise solution. • Award is legally binding. • Cannot be appealed except for: • Fraud, corruption, bias. • Procedural errors that prejudice the rights of a party • The arbitrator exceeding his/her authority.

  7. Advantages of ADR over Litigation • Less expensive • Less time consuming • Parties can choose the person who will preside • Might prevent adverse publicity • Preserve confidentiality • Serves to preserve relationship between the parties

  8. Problems with Arbitration • Unpredictable: Not required to follow previous cases • Lack of legal training of some arbitrators. • Absence of written opinions. • No standard rules to follow • No Discovery • Limited or no appeal • Fed. Arb. Act. Sec. 10 (page 111) • Corruption, fraud or other undue means • Arbitrator exhibited bias or corruption • Refusal to postpone hearing, hear evidence • Arbitrator exceeded his/her powers

  9. Methods of securing Arbitration • Binding arbitration clause in contract. • More than 95% of collective bargaining agreements have such clauses. • Statute • Submission agreement. • A written contract • Can be entered into at any time. • Usually specifies: • How the arbitrator will be selected. The nature of the dispute. Constraints on the arbitrator’s authority. Place and time for the arbitration hearing.

  10. Court-annexed ADR • Purpose: to reduce the number of litigated cases. • Some states make it mandatory. • Usually for cases involving less than a set dollar limit. • If mandatory, then non-binding. • Can still go to court for a full trial. • But might have to pay some costs to do so. • Rules of evidence usually same as in litigation.

  11. International Dimensions of ADR • ADR is highly favored internationally. • New York Convention • Makes arbitrators’ awards enforceable in losing party’s country. • U.S. policy favors arbitration of international disputes. 6-11

  12. NEGOTIATION TWO TYPES OF NEGOTIATION 1.Distributive (Competitive) • Parties have different and independent goals • fixed-sum • win-lose • positional

  13. NEGOTIATION Integrative (Collaborative) Parties work together toward common or compatible goal Resolution of conflict Advancement of shared vision Recognize Interdependence Deal constructively with difference Joint ownership of resolution

  14. NEGOTIATION Distributive Integrative Soft Hard Problem solving Avoid conflict Win Solve the problem Friends adversaries Professionals Change easily Dig in Focus on interests Concede easily Concede Don’t concede ? ---------- stubbornly Invent options

  15. NEGOTIATION Soft Hard Problem Solving Avoid contest Win contest Use standards of will of will Make Demand Separate people concessionsconcessions and problem Back down Make threats Know others walkaway Commit early Commit early Draft as you go draft late draft late commit at end

  16. Integrative Negotiation Bargain Over Interests Not Positions Separate People From the Problem Generate Options Before Deciding Base Results On Objective Criteria

  17. POSITIONS / INTERESST POSITIONSINTERESTS Things you say Underlying you want Motivations Demands Needs and Concerns What you will Fears and Aspirations or won’t do

  18. DISCOVERING INTERESTS • Look behind positions for underlying reason • Put yourself in other person’s shoes • Ask : “Why?” • Ask “Why not? What would be wrong with…”

  19. PERCEPTUAL DISTORTION A Stereotyping • Assigning attributes based on membership in a particular group B. Halo effects • Generalize on a number of attributes based on knowledge of one attribute. C. Selective perception • Accepting information that supports prior belief and filtering out nonconforming information

  20. PERCEPTUAL DISTORTION D. Projection • Ascribing to others the characteristics you have • Assuming that the other party will respond in the same manner you would respond. E. Framing • Subjective evaluation mechanisms to determine whether to pursue or avoid future actions

  21. Framing • A large car manufacturer is suffering significant financial losses. As a result plants need to be closed and 6000 employees laid off. Four proposals have been developed. You must select one of the plans. • Plan A. This plan will save one of the three plants and 2000 jobs. • Plan B. This plan has a 1/3 probability of saving all three plants and all 6,000 jobs, but has a 2/3 probability of saving no plants and no jobs.

  22. Framing • A large car manufacturer is suffering significant financial losses. As a result plants need to be closed and 6000 employees laid off. Four proposals have been developed. You must select one of the plans. • Plan C. This plan will close 2 of the 3 plants and lose 4000 jobs. • Plan D. This plan has a 2/3 probability of closing all three plants and losing all 6000 jobs and a 1/3 probability of closing no plants and losing not jobs.

  23. A large car manufacturer is suffering significant financial losses. As a result plants need to be closed and 6000 employees laid off. Four proposals have been developed. You must select one of the plans. • Plan A. This plan will save one of the three plants and 2000 jobs. • Plan B. This plan has a 1/3 probability of saving all three plants and all 6,000 jobs, but has a 2/3 probability of saving no plants and no jobs. • Plan C. This plan will close 2 of the 3 plants and lose 4000 jobs. • Plan D. This plan has a 2/3 probability of closing all three plants and losing all 6000 jobs and a 1/3 probability of closing no plants and losing not jobs.

  24. Relationships A. The norm of reciprocity • Duties owned to one another because of prior actions. • Reciprocity traps B. The similarity principle • We assume others like us act like us

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