Deck 14: Alternative Dispute Resolution

Question 1

One reason that parties might voluntarily choose ADR is because it could produce a fair result faster than going to trial.

Answer 1

True

Question 2

The Alternative Dispute Resolution Act of 1998

A) increased judicial interest in ADR.
B) requires federal district courts to implement ADR procedures.
C) Both of the above
D) None of the above.The statute discourages the use of ADR in federal courts.

Answer 2

C

Question 3

Arbitrators do not normally make conclusions of law and findings of fact as do trial judges in civil litigation.

Answer 3

True

Question 4

Congress has established a national policy favoring the mediation of lawsuits where the jurisdiction is based on diversity of citizenship.

Question 5

One of the advantages of using mediation instead of litigation to resolve disputes is that there are normally fewer enforcement problems.

Question 6

Mediation is less expensive than litigation.

Question 7

Online dispute resolution is not well respected and few legitimate organizations would use it.

Question 8

Sources of dissatisfaction with the legal system include

A) the costs associated with overpreparation of cases for trial.
B) legal strategies of attrition.
C) the lawyer's failure to examine critically the strength of his or her own case early in the litigation process.
D) none of the above.

Question 9

A "neutral" is a person specially trained in the subject matter of a claim.

Question 10

In voluntary ADR methods, the rules that govern the proceedings are generally the same as those used in the trial court that would have jurisdiction over the matter.

Question 11

Because of the huge number of cases on court dockets

A) many states have established statewide ADR systems
B) some states permit local jurisdictions to experiment with forms of ADR.
C) both a and b are correct
D) none of these answers are correct

Question 12

In several situations, legislation substitutes the right to a jury trial with court-annexed ADR.

Question 13

Discovery and the rules of evidence are the same on court-annexed arbitration as they would be at trial.

Question 14

Elizabeth Garfield brought suit against her former employer, Thomas McKinnon Securities, Inc., claiming that McKinnon had discharged her on account of her age in violation of the Age Discrimination in Employment Act.McKinnon moved to dismiss the complaint and compel arbitration because Garfield had agreed to arbitrate any controversy arising out of her employment.She maintained that Congress did not permit persons to waive their statutory right to sue ADEA violations in federal court via the execution of an arbitration agreement.Ms.Garfield is

A) correct.In the national policy established by Congress, arbitration is not a favored way of resolving disputes.
B) correct.Rights arising under statutes cannot be arbitrated; only common law claims can be arbitrated.
C) correct.State law prohibits labor disputes from being submitted to arbitration.
D) incorrect.Most disputes can be submitted to arbitration, and public policy generally favors the private settlement of disputes.

Question 15

Why might attorneys refuse to consider ADR?

A) They worry it will make them look weak.
B) They think responding improves their position rather than initiating settlement.
C) Because parties might be less honest about settlement amounts.
D) All of these answers are correct.

Question 16

As a factual matter, few civil cases result in trials.

Question 17

The proper role of a judge in a settlement conference is clearly laid out in the procedural rules.

Question 18

If a party rejects the decisions of an arbitrator and decides to go to court, they would have a trial de novo.

Question 19

In voluntary ADR, evidence that would be inadmissible in litigation is usually deemed admissible in ADR proceedings.

Question 20

The federal Constitution guarantees access to a jury trial in all civil cases.

Question 21

Private trials are appropriate

A) after mediation or arbitration have failed.
B) when parties want to avoid public exposure.
C) when expertise is needed in the judge.
D) None of these answers are correct.

Question 22

Private trials offer participants many advantages over public trials.Some of these advantages include

A) the right to jointly select the judge who will conduct the trial.
B) the ability to avoid the public nature of a traditional trial.
C) simplified rules of evidence and procedure.
D) all of the above.

Question 23

Judicially hosted settlement conferences

A) are technically a step in the litigation process.
B) are used by judges and lawyers as an informal method for resolving disputes without trial.
C) can help get discussions beyond the lawyer's puffery.
D) all of the above.

Question 24

Which of the following statements about mediators is NOT true?

A) They help disputants narrow the issues.
B) They look for areas in which the parties have a common interest as well as alternatives for resolving the dispute.
C) They encourage the parties to focus on only one solution.
D) All of the above are correct.

Question 25

Minitrials are particularly appropriate when

A) cases will be easy to settle.
B) cases have been difficult to settle.
C) the Seventh amendment compels a jury trial.
D) none of these answers is correct.

Question 26

What was the main policy impact of the Federal Arbitration Act?

A) It allowed for the federal financing of arbitration.
B) It created a federal agency to oversee the creation of ADR techniquest.
C) It established a national policy in favor of arbitration.
D) None of these answers is correct.

Question 27

Which of the following statements about summary jury trials is false?

A) Summary jury trials are never court annexed.
B) A summary jury trial allows the attorneys to have a practice trial and can be helpful in determining the appropriate damage award.
C) In a summary jury trial each side presents a summary of its case to five or six jurors.
D) The jury's decision is nonbonding in a summary jury trial.

Question 28

Plaintiff brought suit against a defendant for breach of contract.The trial judge, pursuant to the rules of civil procedure in that particular court, referred the court to arbitration prior to trial.The key issue in determining whether the judge can compel arbitration prior to trial will be whether

A) the parties willingly agree to participate in court-annexed ADR.
B) the rule compelling arbitration violates the Seventh Amendment right to a jury trial.
C) arbitration would be preferable to mediation.
D) There is no issue as the Supreme Court has ruled that a trial judge can use whatever means possible to coerce the parties to settle or compel them to be bound by ADR results.

Question 29

One ADR process allows each party to make an abbreviated presentation to a panel, generally consisting of a senior manager or decision maker from each side and a judge or jointly selected neutral third party.After these presentations, the managers meet privately to try to negotiate a solution to the dispute.This process is known as

A) arbitration.
C) a minitrial.
B) mediation.
D) a summary jury trial.

Question 30

Which of the following is a technique used by both the court annexed and voluntary ADR?

A) Mediation
B) Minitrials
C) Arbitration
D) All of the answers are correct

Question 31

Roger Lockhart, a teenager, lost the sight in one of his eyes.He alleged that this was due to the negligence of Dr.Ramon Patel.A summary jury trial, a form of ADR, was conducted, and the jury found that the defendant should be responsible for $200,000.The effect of that will be that

A) plaintiff is entitled to a judgment of $200,000.
B) the defendant can immediately appeal the award, but if he fails to appeal, a default judgment will be entered.
C) only the plaintiff, not the doctor can appeal the award, if he believes the amount is inadequate.
D) while the verdict is nonbinding the verdict can serve as a basis for settlement negotiations.

Question 32

Which of the following is NOT true about ADR?

A) The same options are available in every jurisdiction.
B) Some state courts require that attorneys tell clients about ADR options.
C) Some businesses advertise their participation in ADR to attract clients.
D) All of these answers are true.

Question 33

While there are many beliefs about the benefits of ADR,

A) only one study has been done regarding the benefits of ADR.
B) no studies have been conducted to determine if ADR really has the benefits it claims to.
C) the several studies that have been conducted have mixed results.
D) the studies present strong evidence that ADR is not beneficial.

Question 34

Which of the following statements about minitrials is false?

A) A minitrial is actually an abbreviated trial before a district judge.
B) Minitrials are used primarily for business disputes.
C) The parties in a minitrial have control over the procedures and can disregard the formal rules of civil procedure and evidence.
D) One goal of a minitrial is to educate the managers about the dispute so that they can control the solution, rather than lawyers and juries.

Question 35

Critics of the private trial worry about

A) a two-tier system of justice.
B) the right to privacy.
C) overworking the private courts with too many litigants.
D) none of these answers are correct.

Question 36

The procedures of a summary jury trial are

A) similar to a regular trial.
B) waived to speed up arriving at a settlement.
C) the same as the Federal Civil Rules of Procedure.
D) none of these answers are correct.

Question 37

Which of the following is NOT correct about the usual way that arbitration hearings are conducted?

A) Opening statements by the parties are allowed.
B) There is strict adherence to the rules of evidence.
C) Direct and cross-examination of witnesses are permitted.
D) Arbitration hearings are generally not open to the public.

Question 38

Which of the following statements about settlement conferences is true?

A) Settlement conferences are a traditional, informal step in the litigation process, which often result in the resolution of a dispute without a trial.
B) A judge may not participate in a settlement conference.
C) Judges possess unlimited powers to extract a settlement in conducting a settlement conference.
D) Lawyers may not participate in a settlement conference; each side is represented by a mediator instead.

Question 39

Critics of summary jury trials

A) undermine the formal legal process.
B) worry that the speedy trial makes the case overwhelming to the jurors.
C) violate public policy.
D) all of the above.

Question 40

Which of the following statements about mediation is false?

A) Mediators have no formal power to render a decision, but rather act as facilitators for dispute resolution.
B) Mediation is nonbinding.
C) There are fewer enforcement issues with mediation because the process produces an agreement between the parties.
D) All mediation is court annexed.

Question 41

Explain the differences between voluntary and court-annexed arbitration and identify an ADR technique that would be appropriate under each.

Question 42

Your neighbor has a very loud bird that screeches loudly at all hours of the day and night.You have not slept well in months and feeling exhausted and stressed.You've spoken to your neighbor, who has agreed it is a problem, but the problem has not gotten any better.You believe that ADR would be an effective way to resolve this.Which ADR technique would you select and why?

Question 43

The State of Missouri Bar Association has proposed an amendment to the state's Code of Attorney's Professional Responsibility to require that lawyers discuss ADR alternatives as well as litigation with clients.Attorney I.M.Fearless opposes this rule.He believes that ADR imposes additional costs and delays on clients and is primarily proposed to discourage clients from exercising their rights to a jury trial (thereby reducing the need for increased court funding).What arguments can you make to rebut Fearless?