What are Tiered Dispute Resolution Clauses (TDRCs)?

Provisions in contracts requiring negotiation or mediation before litigation or arbitration.

Clauses that allow parties to bypass legal agreements and directly file lawsuits.

A legal framework that prohibits arbitration in all forms of dispute resolution.

Clauses that only apply to disputes involving international contracts.

Agreements focused solely on avoiding legal representation during disputes.

Which of the following is not a best practice for Empathy?

Advance research to find areas of commonality and to be genuinely friendly and curious

Having a learning conversation in order to better understand the counterpart’s client and that client’s situation in order to propose solutions that respond to those needs

Translate the parties’ interests into realistic integrative proposals

Looping or active listening to confirm that you accurately understand their perspective and that, even if you don’t agree with their position, you respect their position

To effectively engage with a Competitive negotiator, you should:

Stay firm in presenting your own views and be prepared to challenge their ideas

Offer compromises and quick resolutions to avoid confrontation

Allow them to dominate the conversation and make the final decision

Focus on win-win solutions to ensure both sides feel equally satisfied

What is a potential challenge when negotiating with a Problem Solver/Collaborator?

The negotiation may take longer than expected due to the need for detailed discussions and collaboration

The solution may seem like a temporary fix, without addressing the deeper issues

They may build resentment over time by ignoring their own needs to please others

They may refuse to engage in negotiations unless all parties are in agreement from the start

What does the consistency principle, as applied to objective criteria in negotiation, emphasize?

Applying the same standards and reasoning to both sides of the negotiation

The importance of using subjective feelings to guide decisions

Flexibility in the criteria to meet the needs of both parties

Choosing objective criteria that favor one party over the other

Forced arbitration is viewed favorably by:

Neither Democrats nor Republicans

What is the standard of compelling arbitration outlined in the NY Convention?

“Unless…the agreement is null and void, inoperative, or incapable of being performed”

“...save upon such grounds as exist at law or in equity for the revocation of any contract”

“Unless…the terms of the arbitration agreement are unconscionable to one of the parties”

“...save upon such grounds as exist in the mandatory law of the arbitral seat”

Company A, from country A, reaches out to Company B, from country B, to initiate a deal together. They sign a contract containing a valid arbitration agreement in country B. In their arbitration agreement, they agree to arbitrate in country C. Company A is unhappy with the decision, alleges that the arbitral tribunal did not arrive at their decision per the terms outlined in the scope agreement, and wants to appeal the award. To whom does Company A go to for resolution of the dispute?

NY Convention Enforcement Board

What is a key difference between adjudicative and facilitative dispute resolution processes?

Adjudicative processes guarantee an outcome determined by a neutral third party, while facilitative processes involve negotiation between parties without third-party control over the outcome.

Adjudicative processes are always non-binding, whereas facilitative processes are always binding.

Facilitative processes are enforceable through expedited court enforcement, whereas adjudicative processes require litigation to enforce outcomes.

Adjudicative processes prioritize interests, while facilitative processes prioritize rights.

Facilitative processes always involve an administrative judge, whereas adjudicative processes do not.

Which of the following statements about private trials is TRUE?

A private trial only has the same effect as a normal trial if a public judge agrees to be bound by the private judge’s decision.

A private judge’s decision is automatically binding without any further court involvement.

The public judge must adopt the private judge’s conclusions and findings without the ability to appeal.

Private trials cannot involve dispositive motions such as summary judgment.

Private trials are limited to arbitration and cannot include elements of a public trial.

What potential consequence exists for a party that rejects a non-binding arbitration award and proceeds to trial?

If the party performs worse at trial, some courts require them to pay the opposing side’s legal fees.

The party must pay all arbitration-related fees, regardless of the trial outcome.

The party loses the right to introduce new evidence at trial.

The arbitration award automatically becomes enforceable if the party loses at trial.

The party is barred from filing dispositive motions before trial.

Which of the following is a characteristic of Social Process Theories of conflict?

Conflict arises from relationships between parties, especially along distributional lines

Conflict arises from unmet personal needs

Conflict results from threats to group identity

Conflict is understood through the institutionalized structures of society

What does procedural unconscionability typically involve?

A lack of meaningful choice in accepting the arbitration clause, such as a “take it or leave it” contract.

A biased arbitrator or excessive costs imposed by the clause.

An arbitration clause that shocks the conscience.

Arbitration clauses that limit the remedies available to one party.

Which of the following statements about judicial review of arbitration awards is TRUE?

Courts have a very limited role in reviewing arbitration awards to preserve the arbitration process.

Courts regularly review the merits of arbitration awards to ensure fairness.

The FAA allows courts to vacate awards for any misinterpretation of law.

Arbitrators are required to provide detailed explanations for their awards.

What is the separability doctrine in arbitration agreements?

It treats arbitration provisions as separate and valid contracts, distinct from the larger contract.

It invalidates arbitration clauses in contracts involving fraud.

It ensures courts review all fraud claims related to contracts.

It prevents arbitration agreements from being enforced in federal courts.

According to the Needs Theory of conflict, what causes conflict?

The failure of a dispute resolution system

The Dispute Resolution Continuum progresses from:

Informal resolution to formal resolution

Conflict as action to conflict as perception

Position-based to interest-based negotiations

What is the primary difference between arbitration and mediation?

In arbitration, the arbitrator determines the outcome, while in mediation, the parties determine the outcome

Arbitration is less formal than mediation

In arbitration, the parties determine the outcome, while in mediation, the arbitrator decides

Mediation is a private process, while arbitration is always public

Which of the following is true about the role of arbitrators in the arbitration process?

Arbitrators come from a diverse range of backgrounds, but there are concerns about lack of diversity in the field

Arbitrators must have a law degree and special training to act in their capacity

Arbitrators are not immune from civil liability for their decisions

Arbitrators must be chosen by the court, not the parties involved

In the case of the opera singer, what is the primary takeaway regarding negotiation?

Avoid offering a price right away, and instead, ask questions to understand the Zone of Possible Agreement (ZOPA)

Always start by offering a number that reflects your bottom line

The first person to make an offer holds the least power in the negotiation

Negotiation is only effective when the parties have equal power and resources

Which legislation governs commercial arbitration in the United States?

The Federal Arbitration Act (FAA)

The National Labor Relations Act

The Uniform Arbitration Act (UAA)

Adjudicative and consensual methods differ based on:

Who will determine the outcome of the dispute.

The presence of attorneys on each side.

The theoretical underpinnings of the conflict.

Who will pay for the filling fees.

What is the difference between a position-based process and an interest-based process?

A position-based process tends to have parties asserting positions opposing each other; interest-based processes include attempts to reconcile the parties’ interests by finding a solution satisfying the underlying interests of both parties.

Adjudication is always a position-based process, whereas negotiation is exclusively an interest-based process.

Mediation and negotiation never involve positions, since they focus exclusively on resolving the needs or motives that underlie each parties’ position.

Litigation never involves interest-based processes, because it only acknowledges people’s positions, or what someone says she wants or is entitled to have.

Which of the following correctly states the distinction between mediation and binding arbitration?

The arbitrator is the decision-maker in arbitration, whereas the parties are the decision-makers in mediation.

Arbitration results in awards that are binding, whereas the settlement agreements resulting from mediation are just contracts that are unenforceable and thus non-binding.

Mediation is exclusively interest-based, whereas arbitration is exclusively position-based.

Mediation is informal and not bound by the law, whereas arbitration is a formal process that relies on established legal precedent.

In order to earn the points described in the syllabus, are the students in ADR Survey required to complete formative assessment questions after every day of class - and to complete them by each day's deadline?

Yes, there will be formative assessment questions after every day of class - even on Friday - and there will always be a deadline.

Yes, except that on Friday, the class will be over so there will not be any more formative assessment questions.

Yes, except that on Friday, there will not be any deadline.

No, because the syllabus does not provide for any points that can be earned for completing the formative assessment questions.

What reasons might motivate parties to choose to arbitrate a dispute instead of going to trial?

Because they want a decision-maker who really knows the subject matter.

Because they know that arbitration will always be less expensive.

Because they want to preserve all of their legal rights.

Which of the following is a true statement regarding the qualifications required to be an arbitrator?

There are no requirements to be an arbitrator. Anyone may hold themselves out as an arbitrator.

Arbitrators must be certified as arbitrators before holding themselves out as arbitrators.

Arbitrators must hold a terminal degree in their given field of expertise in order to hold themselves out as arbitrators.

Arbitrators must be licensed by the state before they may hold themselves out as arbitrators.

Which of the following, if any, most accurately describes the Supreme Court’s holding in Gilmer v. Interstate/Johnson Lane?

Arbitration provisions are presumptively valid contracts just like other contracts, and will not be invalidated based on generalized concerns about arbitration or arbitrators.

Arbitrators must write the reasons for their arbitration awards in language easy enough for the lay person to understand.

Because arbitral institutions owe a fiduciary duty to the parties and the courts under the FAA, courts are required to delegate decision-making power to them.

Arbitration agreements for employees can never be enforced under the FAA without some proof of equal bargaining power.

A court is more likely to refuse the enforcement of an arbitration agreement when:

The arbitration agreement sets up a proceeding that limits statutory remedies that would otherwise be available in court to the weaker non-drafting party.

The party refusing the enforcement of the arbitration agreement argues that the larger contract was fraudulently induced.

The arbitration agreement is placed in an obscure part of a larger contract.

The scope of the agreement includes statutory claims.

Which of the following are grounds under the FAA to reverse an arbitration award?

The arbitrator exceeded the scope of her authority under the agreement to arbitrate.

The arbitrator was mistaken about the facts in the case.

The arbitrator was mistaken about the law.

The arbitrator was mistaken about both the law and the facts of the case.

The arbitrator was mistaken about the facts and exceeded the scope of her authority under the agreement to arbitrate.

Which of the following are non-statutory grounds for vacating an award:

The arbitrator knew what the clearly controlling law was, deliberately disregarded it, and contradicted it in the award.

Due process violations and public policy.

Manifest disregard of the law such as a clear misunderstanding of the relevant law.

In which of the following circumstances is a provision in an arbitration agreement least likely to be enforced?

An arbitration agreement requires that a consumer initiating arbitration against a company pay a non-refundable fee of $5,000 to initiate arbitration.

An arbitration agreement limits discovery to one deposition and one request for production of documents per party.

An arbitration agreement is imposed on purchasers of a company’s products on a take-it-or-leave-it basis.

An arbitration agreement prohibits class action arbitration.

A credit card company includes an arbitration provision in every cardholder agreement.

Which of the following, if any, most accurately describes the Second Circuit’s holding in Sobel v. Hertz, Warner & Co. ?

The FAA does not require arbitrators to disclose the reasoning underlying their awards.

When resolving statutory claims, arbitrators must always explain their reasoning in order to avoid triggering a ground for annulment.

Courts always have the possibility of reviewing statutory interpretations by the arbitrators.

A misconstruction of the law by an arbitrator is a clear manifest disregard of the law and consequently a ground for vacatur.

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards:

Is an international treaty that seeks to overcome judicial hostility to international arbitration of commercial disputes.

Has been ratified only by Western nations.

Should not prevail if it conflicts with the Federal Arbitration Act because the Convention is not U.S. law.

Has a list of limited grounds for the annulment and refusal of enforcement of foreign arbitral awards.

Recall the Golden Years simulation. Imagine that you are the mediator, and you are trying to be as facilitative (or elicitive) as possible, based on the continuum of mediator practices from facilitative (or elicitive) to evaluative (or directive). Which of the following would be the most facilitative (or elicitive) intervention?

In caucus, you ask Sally Soprano what she would most like to accomplish through the mediation.

During caucus, you tell Green Acres' director that a jury is unlikely to find for Green Acres on Sally's personal injury claim.

In a joint session, you say to the parties, “You’ve found ways to accommodate Sally's and Green Acres' needs in terms of the nursing home's operations, and you have closed the gap from your initial offers that were $100,000 apart to offers that are now $10,000 apart. You've accomplished a lot. Why don’t you bridge the remaining gap by splitting the difference?”

During caucus, you tell Sally's attorney, “I respect your legal analysis and zealous representation of your client. But if I were you, I’d be worried about your client’s attack on Susan Gross."

In joint session, in an effort to facilitate both parties' willingness to work with each other, you recommend a settlement figure.

According to Riskin, a mediator with a “broad” agenda:

Encourages the parties to consider a wide range of issues and options to settle a dispute.

Is willing to keep his/her calendar open so that the mediation might play out over several days.

Is open to playing a number of roles, including facilitator, case evaluator, and arbitrator.

Is accustomed to mediating cases with multiple parties.

Is willing to consider a wide range of dollar amounts to settle a dispute.

Which of the following is never a characteristic of mediation?

A binding decision by the neutral.

A binding agreement at the conclusion of the process.

In mediation, a caucus is:

A meeting between the mediator and just one side in the mediation.

A joint session that the mediator calls in order to talk about the mediation process itself, rather than about the issues in dispute.

A meeting between a party and his or her attorney.

A pre-mediation telephone conversation with the lawyers, to establish the date, time, and location of the mediation session.

Which of the following statements is true?

Lawyers should prepare their clients for mediation.

When lawyers accompany their clients to mediation, the clients should not speak and should instead allow their lawyers speak on their behalf.

Lawyers do not need to do any legal research or discovery prior to a mediation.

It is not clear that lawyers are needed or useful in mediation because the law is irrelevant.

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Practice Problem

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Rusty Rusthoven

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73 questions

Show all answers

MULTIPLE CHOICE QUESTION

3 mins • 1 pt

Person A is selling a widget which Person B would like to buy. A wants $50 for the widget, but is willing to take $25. B would like to buy the widget for $15, but is willing to pay up to $30. What is the bargaining zone for A and B's transaction?

$15-$50

$25-$30

$15-$25

$30-$50

MULTIPLE CHOICE QUESTION

3 mins • 1 pt

Which of the following is NOT a step in developing a BATNA?

Inventing

Researching

Selecting

Improving

MULTIPLE CHOICE QUESTION

3 mins • 1 pt

Which of the following represents the biggest advantage in negotiation?

Knowing the parties' RPs

Ability to walk away without a deal

Knowing the parties' needs and objectives

Political influence

MULTIPLE CHOICE QUESTION

3 mins • 1 pt

Which of the following is NOT a key goal of Collaborative Law (CL)?

Providing a civilized, problem-solving process for divorcing spouses.

Increasing the complexity of legal procedures to protect client rights.

Minimizing costs and improving compliance with agreements.

Focusing on maintaining good relationships, particularly for children.

Increasing privacy in the dispute resolution process.

MULTIPLE CHOICE QUESTION

3 mins • 1 pt

What is the primary purpose of the disqualification agreement in Collaborative Law?

To prevent clients from hiring attorneys during the process.

To ensure that mediators remain impartial.

To disqualify attorneys from representing their clients in litigation if the process fails.

To establish formal discovery procedures during negotiations.

To allow clients to pursue alternative legal representation at any time.

MULTIPLE CHOICE QUESTION

3 mins • 1 pt

What distinguishes Collaborative Law (CL) from mediation, according to CL proponents?

Collaborative Law exclusively focuses on emotional reconciliation.

Mediators are allowed to provide legal advice during the process.

Collaborative Law avoids power imbalances and provides active legal representation.

Mediation is quicker and more structured than Collaborative Law.

Collaborative Law discourages the use of attorneys in the negotiation process.

MULTIPLE CHOICE QUESTION

3 mins • 1 pt

What is Online Dispute Resolution (ODR)?

A method that replaces legal representation with AI-driven verdicts in all cases.

A traditional courtroom process enhanced with basic digital tools for file storage.

A digital approach to resolving disputes using algorithms, online communication, and automated tools.

A manual process for courts to gather and analyze data on previous cases for policy changes.

A system that exclusively focuses on large-scale, high-value corporate litigation.

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