Deck 4: Alternate Dispute Resolution

Question 1

Proactive ADR increases the likelihood of litigation.

Answer 1

False
Explanation: Private, proactive ADR techniques, such as drafting contract clauses and entering partnering agreements, can help to make litigation unnecessary from the outset. Proactive ADR techniques provide timely, cost-efficient methods for resolving disputes before they occur. By providing a solution to problems before those problems arise, proactive ADR eliminates the uncertainty and risk inherent within the litigation process.

Question 2

Drafting of ADR contract clauses is a proactive attempt to ensure that litigation will be avoided should a dispute arise.

Answer 2

True
Explanation: An ADR contract clause is a proactive attempt which allows parties to agree to use an alternative dispute resolution technique when a disagreement arises, rather than litigating the issue.

Question 3

An arbitrator's decision is always binding and cannot be appealed in court.

Answer 3

False
Explanation: The parties may agree in advance to be bound by the arbitrator's decision. If they do not so agree, the arbitrator's decision can be appealed in court.

Question 4

The parties involved in the dispute can use early neutral evaluation (ENE) to settle a case or proceed to trial.

Question 5

Mediation always follows the filing of a lawsuit.

Question 6

A collective science court (CSC) will not succeed unless it has the power to compel the parties to submit to its authority.

Question 7

In negotiated rulemaking, affected parties can contest a rule established by a rule-making agency.

Question 8

An arbitration hearing can be planned and executed by the parties themselves.

Question 9

A criminal law case can be resolved by an ADR panel.

Question 10

Kin and Mai, through their lawyer, present an abbreviated version of their case to a jury in a single day, and obtain an advisory verdict. This is a summary jury trial.

Question 11

A private civil trial follows the same rules used in an official trial.

Question 12

Partnering is best used when there are only two parties in a dispute about a few issues.

Question 13

Med-arb is a process that combines negotiation and mediation to deliver effective results.

Question 14

Litigation is the process by which adversaries voluntarily settle their disputes.

Question 15

Some jurisdictions require litigants to submit to case management hearings and settlement hearings before they can secure a trial date.

Question 16

ADR clauses are only beneficial to those parties with the strongest position within a contractual relationship.

Question 17

ADR is intended as a replacement for the legal system.

Question 18

Colleagues Sarah and Julia are involved in a dispute and get another colleague, William, to make suggestions about resolving their dispute. This is an attempt at arbitration.

Question 19

In a summary jury trial, there is no time limit placed on the parties as this allows them to practice their arguments.

Question 20

Arbitration and mediation can usually be scheduled quicker than litigation.

Question 21

Opponents of _______________ have challenged it because they believe it is an unconstitutional deprivation of their right to a trial by jury and equal protection under the law.

A) mandatory mediation
B) mandatory arbitration
C) mandatory med-arb
D) ENE

Question 22

Post-appellate procedures:

A) involve taking a case that has been rejected or dismissed by a domestic court to an international organization.
B) refer to a pledge to use arbitration, should the parties find themselves in disagreement as to the enforcement rights under the original contract.
C) are processes by which agencies invite the organizations who will be affected by a new rule to provide input about the writing of that rule.
D) specify that the parties to the agreement have promised to use an alternative dispute resolution technique when a disagreement arises rather than litigating the issue.

Question 23

An ADR contract clause:

A) must specify the ADR technique that the parties will use in the event of a dispute.
B) can merely state that the parties have the option of using an ADR technique.
C) prohibits the parties from resorting to litigation to settle an issue.
D) requires that the parties follow all ADR procedures with a summary trial.

Question 24

Which of the following is a disadvantage of entering into an international arbitration agreement?

A) The parties' choice of legal representation is limited to the forum in which the dispute is to be heard.
B) Local laws of a particular nation may prevent a party from using certain arbitrators.
C) The parties cannot choose the arbitrators who will decide on the case.
D) Using an international arbitration agreement does not allow for uniform enforcement of a judgment across nations.

Question 25

____________ is an ADR technique by which parties hire a retired judge or a magistrate to hear the dispute, following rules used in an official trial.

A) Partnering
B) A private civil trial
C) Early neutral evaluation
D) Med-arb

Question 26

Early neutral evaluation (ENE) is a(n):

A) iADR process that combines mediation with arbitration.
B) shortened version of a trial, conducted in less than a day before an actual jury which renders an advisory verdict in the case.
C) ADR technique by which the parties hire a retired judge to hear their dispute.
D) ADR process in which the parties permit a referee to assess their case on the basis of the facts and legal arguments alone.

Question 27

The judges on the collective science court must be:

A) drawn from a sample of people affected by the technology in question.
B) scientists with expertise in the areas under investigation.
C) from government bodies involved in legislation about the subject.
D) lawyers with a scientific background in the subject.

Question 28

Settlement week is a five-day period during which a court's docket is cleared of all business, except for settlement hearings.

Question 29

____________, a form of ADR, combines the best aspects of ____________ and ____________.

A) Med-ENE; reg-neg; ENE
B) Neg-arb; negotiation; arbitration
C) Med-arb; mediation; arbitration
D) Med-arb; ENE; a private civil trial

Question 30

Because many ADR techniques completely sidestep the courts:

A) ADR cannot control the spending on litigation.
B) the parties are kept from carefully considering their agreements.
C) many attorneys do not adequately develop analytical skills.
D) many critical social issues may never reach the judicial system.

Question 31

In a(n) ____________, the jury provides an advisory verdict based on the facts.

A) summary jury trial
B) med-Arb hearing
C) early neutral evaluation
D) mediation

Question 32

Big Co. and Gantt Co. have entered into a contract for a long-term construction project. The companies opt to use a partnering process to resolve disputes. The partnering process between them will begin:

A) after the contract has been finalized, but before the project has begun.
B) when the first dispute between the two parties arises.
C) only if both mediation and arbitration procedures have failed.
D) once the project has begun and the parties are aware of possible problems.

Question 33

Which of the following is true of litigation and ADR?

A) Litigation is less adversarial than ADR procedures.
B) Litigation is generally more expensive than ADR procedures.
C) ADR procedures are generally more time-consuming than litigation.
D) The use of ADR procedures makes litigation unnecessary.

Question 34

ADR is most likely to be useful in cases involving:

A) constitutional law.
B) civil rights.
C) contracts.
D) criminal law.

Question 35

Which of the following is generally true of arbitration?

A) The arbitrator can make suggestions, but not issue binding decisions.
B) The arbitrator is a non-lawyer from the relevant industry.
C) The arbitrator must be chosen from among the disputing parties.
D) The arbitrator's decision can be appealed in court.

Question 36

____________ is an ADR process by which an agency invites the people and the organizations that would be affected by a new rule to have input into the writing of that rule.

A) Med-arb
B) Negotiated rulemaking
C) A private civil trial
D) Mediation

Question 37

To be enforceable and upheld by a court, an ADR contract clause should include all the following standard provisions except:

A) the types of disagreements that will be submitted to ADR.
B) the ADR technique or techniques that can be used.
C) the substantive law and the procedural rules that will be followed.
D) whether both parties have sufficient insurance resources to sustain the award.

Question 38

Which of the following statements about a mediator is true?

A) The mediator usually encourages the disputing parties to compromise on their demands, but cannot force the parties to do so.
B) The mediator has the power to issue a binding judgment on the disputing parties, regardless of what the parties do.
C) The mediator must be chosen from among the parties involved in the dispute.
D) The mediator's role is only useful before a lawsuit is filed by the parties.

Question 39

During a settlement week, the court:

A) settles those cases that cannot be resolved through arbitration.
B) requires attorneys to be present for mediation sessions.
C) resolves all submitted cases to be decided by summary jury trial.
D) subjects all submitted cases to private civil trials.

Question 40

Which of the following is true of arbitration?

A) The procedures involved in arbitration are more rigid than those followed in lawsuits.
B) An arbitrator's decision is binding and cannot be appealed in court.
C) An arbitration hearing can be planned and executed by the parties themselves.
D) An arbitrator's decision cannot come under the review of the courts.

Question 41

Kim and Dave are filing for a divorce and dispute the value of assets they acquired while married. Each has had appraisers value the assets, but the appraisers have reached differing conclusions. How will a summary jury trial help in this situation?

Question 42

The FFEA, a federal agency, was charged with the task of drafting a series of rules to implement the New England Fusion Reactor Initiative. The FFEA anticipates that the new rules will involve drastic changes for all the concerned parties. Rather than simply writing the rules and placing them before the affected parties, what action might the FFEA take to minimize the other parties' dissatisfaction with the rules? Explain.

Question 43

DSK Construction interacts with many contractors and subcontractors, often for long-term projects. Disputes among the various parties often take a long time to be settled as different parties have different demands. Which method of ADR will help DSK and its contractors prevent disputes before they escalate?

Question 44

Patricia Selan, a freelance photographer, entered a work-for-hire agreement with Dynamic Prints Ltd. During the negotiation stage, Selan asked that the contract include an ADR clause, which would make certain that the parties would submit all disputes to ADR. The clause stated that whenever a disagreement arose, the parties would first talk about the problem informally. If, after 14 days, no solution was reached, the claim would go to the American Arbitration Association, which would assist them in choosing an objective mediator who would help them choose an appropriate ADR plan. What benefits does this contract offer Selan?

Question 45

Cheatham and Dunlay are involved in a partnership dispute that presents several complex legal issues. They decide to use early neutral evaluation. Discuss how this process might be helpful in this situation.

Question 46

The Cuyahoga Experimental Research Company and the Chagrin River Genetics Laboratory Association planned to construct a laboratory for research into the Human Genome Project. The laboratory would be located on land that was owned by four shipping companies. The owners of the companies objected to the way in which their land was appropriated for the project by the government and the research companies. The owners also objected to the planned location of the research facility because they were afraid that some sort of genetic accident might harm the crops and farm animals that were shipped through their terminal which was adjacent to the research facility. Which form of ADR would be ideally suited to hear this dispute? Explain.

Question 47

Kurt Johannessen, a well-known professional athlete, and Tina, his actress wife, have filed for divorce and are involved in a dispute for the custody of their son. Because of their celebrity status, neither wants the media coverage and public detailing of their private lives that come with official court trials. However, mediation and arbitration efforts have failed as neither party is willing to compromise. Discuss how they can resolve their custody dispute and avoid the publicity issues.

Question 48

Chuck likes to grow "natural" flowers, such as dandelions, in his yard, while his neighbor Patty sees these as weeds whose seeds constantly blow into her yard. Both Chuck and Patty anticipate living in their homes for many years to come. Discuss a form of dispute resolution that would best fit this situation.

Question 49

Tom and Jerry operate an ice cream business as equal partners. Tom wants to reinvest the profits, and Jerry wants to distribute and spend the profits. If they litigate, the court will likely order the business assets sold, which will destroy the income potential for both Tom and Jerry. Discuss how this dispute might be resolved by arbitration.

Question 50

When Kiros and Alphonse entered into a partnership agreement, they decided to submit all disputes to binding arbitration and included this clause in their partnership agreement. When a dispute arose, an arbitrator was called in and passed judgment against Kiros. Kiros appealed to the courts, and the arbitrator's ruling was overturned. Discuss a possible explanation for this.