Conflict and Dispute Resolution

• Alternative dispute resolution is increasingly recognized as a way to address human problems that conventional legal systems are unable to solve.
• Process pluralism means different kinds of disputes need different procedures.
• The three most common types of ADR are negotiation, mediation, and arbitration.
• Book conclusion emphasizes the importance of parties being able to participate fully in decisions affecting their lives.

Conflict and Dispute

• Conflicts arise from various issues and occur on multiple levels, such as intrapersonal and interpersonal.
• Carrie Menkel-Meadow outlined the process of conflict escalation to dispute: naming, blaming, and claiming.
• Resources, values, beliefs, preferences, interests, relationships and identity are at stake in conflicts.
• A conflict does not have to be a win-lose situation, and binary presentations of facts are not the best way to determine the truth.
• Some facts cannot be accurately determined while the law may be conflicting and human/emotional equities cannot be sharply divided.

Ways to Solve Business Disputes

• Domination involves one side winning over the other.
• Compromise involves both parties sacrificing.
• Integration is considered the best approach and does not require sacrifice.

Obstacles to integration:

• Requires a high level of intelligence, perception, discrimination, and inquisitiveness.
• The way of life often habituates toward domination.
• Integration is missing the thrills of conquest and it lacks training for it.
• Tannen argues that an argument culture assumes that opposition is the most effective way to discuss ideas, which is untrue.
• Conflict is not necessarily win-lose; it can be constructive so that both sides get their needs met.
• The adversary system views the world as a debate to be won rather than a dialogue and it assumes there are only two sides.
• The adversary system does not apply well to multi-party cases such as class actions or interpleader.
• Lon Fuller viewed law as a problem-solving activity which enables voluntary transactions, prevents violence, defines ideals and standards for civic participation, and provides a means for settling disputes while preserving social harmony.
• Fuller is considered the intellectual father of ADR jurisprudence.
• Fuller wrote the first description of sustained arguments for mediation.

Mediation

• Informal deals does not require state-made law.
• Applies to the administration and enforcement of rules or social norms between parties.
• Should reorient the parties to each other.
• Adjudication improperly creates a right/wrong outcome for polycentric problems (tasks where one aspect affects all others).
• Adjudication is a form of social ordering which assures an affected party a particular form of participation by presenting proofs and arguments for a decision in their favor; a decision must also stand the test of reason.
• An adjudicated decision must past the test of reason
• The adjudicative situation may fail during attempting solve a situation:
• Judges/arbiters may ignore judicial properties by trying various post-hearing conferences, consulting parties not represented, or guessing at facts not proved. Judges/arbiters reformulate a problem instead of the process, to make it fit the adjudicative process.
• Many disputes are settled outside of courts.
• Raiffa: the science of dispute resolution involves understanding and analyzing the nature of a problem according to listed factors.
• The adversarial nature and thought processes applicable in adjudication are often brought into non-adversarial conflict mediation.
• However there is risk in co-operative process as parties use mediation as an opportunity to get cheap discovery.
• Mediators cannot disclose caucus confidences.
• The art of dispute resolution links choice about process to ways in which people express themselves, to enhance the likelihood that desired goals and outcomes are achieved, through appeals to arguments/principles or trading bargaining.
• Claims of passion include emotions and religious and political beliefs.
• Frank Sander: Varieties of Dispute Processing was a huge critic of the traditional legal system and his influence at 1976 Pound Conference led to modern ADR movement.
• An improved dispute processing scheme may vastly increase the number of disputes being processed, and greater demands have been placed on courts.
• Spectrum is based on decreasing external involvement in available processes.

Sander on adjudication beyond Lon Fuller's Definition

• A third party with coercive power.
• Decisions often having win/lose nature.
• Decisions focus narrowly on underlying relationship between parties.

Types of Adjudication

• Parties may choose an adjudicator, as in arbitration.
• Decisions are less subject to criticism when parties have participated in selecting the decision maker.
• Arbitrators must give written explanations.
• Some types of arbitration are like judicial processes, in which the arbitrator concludes with a written opinion attempting to rationalize by referencing general principles.
• Statutes may require compulsory arbitration.
• Arbitration is commonly contractually required and arbitrator will also rely on substantive legal rules/principles.
• AAA may set procedures.
• Inquiry is a hybrid process between adjudication and mediation.
• The inquiring officer has no coercive power.

Other facts

• Avoidance is a common way of dealing with conflict.
• Fuller agrees that polycentric disputes are not well-suited for adjudication, neither are situations without clear rules
• Mediation is preferable for disputes with long-term relationships.
• There are issues with small claims and amount-in-dispute requirements, cheap cases can be complex, and expensive case do not necessarily have to be complex.
• There is a lack of evidence showing how much ADR actually costs.
• ADR requires payment, while courts are free.
• Parties in conflict should call upon a third party for assistance.
• A party may feel like it's two against one with a neutral third party.
• Procedural justice occurs when participants are treated fairly which involves them being heard and acknowledged.
• Societies may substitute law for consent and give more power to third parties.
• Firms in long-term relationships seek compromising solutions and are not prone to litigation..
• Mediators help parties reach their own resolutions instead of fashioning resolutions themselves like the arbitrators.
• ADR prominence rose in the 1970s.
• Complaints included inefficiency (quantitative) and further damage to the process (qualitative).

Private ADR Processes

• Arbitration: private adversarial process using neutral persons or panels to render decisions.
• Can be binding or non-binding.
• Baseball/final-offer arbitration: each party submits a monetary award, arbitrator picks one.
• Bounded/high-low arbitration: parties agree privately to a bounded range.
• Fact-finding.

Mediation

• Voluntary and informal process in which the disputing parties select a neutral third party.
• Mediators facilitate communication, identify and narrow issues, clarify underlying interests and concerns, carry messages, explore agreements/consequences, and develop cooperative problem-solving skills.
• They may encourage parties or propose solutions.
• Information disclosed is confidential.
• Med-Arb- mediation-arbitration.
• If mediation fails, the same neutral third party will arbitrate.
• Multi-step ADR: escalating levels of ADR when conflict isn't resolved.
• Wise man procedure: senior executives investigate disputes.
• Negotiated rule-making: regulatory negotiation between agencies and companies.
• Ombudspersons are frequently used in institutions where claimants have little bargaining power and pre-dispute ADR contracts exist.
• Special litigation committee: company committee determines how the company will deal with an owner's derivative claim. LLCs can use the committee if members are disinterested and independent.
• Two-track approach: ADR in conjunction with litigation.

Court ADR Processes

• No more than 2% of cases are fully tried in federal court.
• Court-Annexed mediation.
• A neutral evaluator identifies strengths/weaknesses of both sides' positions.
• Court-Annexed arbitration is non-binding and may be rejected.

Other points

• Summary jury trial and appellate ADR are available.
• Judge-hosted settlement conferences occur.
• Court minitrial is reserved for large disputes and involves non-binding informal hearings.
• Private judging involves a privately maintained courtroom with all the appetences of the formal judicial process.
• Some argue that rigid rules should be enforced instead of flexible standards.
• Book authors are comfortable with tension between the formal and informal systems.
• Critics claim privatization robs the ability to serve justice needs.

Menkel-Meadow: Supporters of ADR criticize adjudication’s cost, inefficiency, and political difficulties.

• Critics place too much value on legal system and are litigation romanticists.

Settlement Values Include

• Consent
• Participation
• Empowerment
• Empathy
• Emotional catharsis
• Privacy
• Efficiency
• Quality solutions
• Equity
• Access to justice
• It is more focused on addressing individual needs.
• Owen Fiss: Settlement is not preferable to judgment and fans of settlement are ADR evangelists. Consent is often coerced, a bargain may be without authority, the absence of a trial renders subsequent judicial involvement troublesome, there is an imbalance of power, unequal resources, and justice may not be done.
• Civil courts don't exist simply to resolve private disputes; they use state power to bring reality closer to chose public ideals.
• Power imbalances are better addressed in judicial proceedings.
• There is an appellate process to address issues at the lower levels.
• American adjudication is distinctive and should be embraced.
• Michael Moffitt: more nuanced approach and both processes share ideals.
• They deal with power imbalances appropriately, minimize agency costs and meaningful access to courts.
• Neither process should be compared to the idealized other process, and both shortcomings should be addressed.
• You must deal with sloppy realties and conflict resolution has become private instead of free.

Welsh: a fair process requires

• An opportunity to express views.
• A third party who demonstrates that she has understood what is said.
• A third party who treats the disputants in an even-handed way with dignity and respect.

Menkel-Meadow states that the exclusive focus on legal adjudication may not bring us to justice

• Lawyers should work on developing new non-adversarial skills to meet the needs of multiple sets of parties and complementary needs permit efficient positive-sum trades.
• Pareto-optimal: A situation in which no change could lead to agent without another agent losing, but is not necessarily most equitable.
• Log-rolling is a trade-off process, where a loss is traded for a gain, resulting in overall gains for both sides.
• There peace-makers must develop other communication skills than the traditional forms of argument, debate, and adversarial claiming.

The Lawyer-Relationship

• Problem solvers are creative, look deeply into needs of client, have sensitivity to needs of other side, and consider what the situation will permit.
• They should consider client and social goals, explore mindsets, listen to clients, and communicate effectively.
• Need to come up with creative solutions.
• Lawyers interview and counsel to determine interests and goals.
• Rubin and Sander stated that agency theory can be used to explain the benefits of having a lawyer represent a client in a negotiation.
• Agents may have substantive knowledge, process expertise, and special influence, they have emotional detachment and tactical flexibility to use tactics such as good cop/bad cop.
• Peppet: principal-agent economics in negotiations.
• These have issues with information, incentives, and preferences and this may happen when an agent shirks or Agency costs are required in concern.
• A principal can neither directly observe an agent's actions nor completely infer the agent's behavior by the agent's outcomes.
• Principals depend on agents; principals may not have sufficient information to judge the agent’s performance perfectly.
• No incentive structure can perfectly align the interests of an agent and a principal and different compensation structures work better for different employer goals.
• Incentive structures are an imperfect solution, communication and coordination are not free, and a collaborative negotiation style requires more information.
• A problem can arise there can be disagreement over specific strategy or misunderstandings.
• Authority tactics: agent can argue that the principal is not permitting him to agree; Agent may have different preferences from the principal.

Six principles to diminish agent tensions

• Use agents whose preferences are known:
• By who those preferences are known to the other side:
• Change the structure to align principal-agent incentives:
• Share information:
• Treat role coordination/authority delegation as an ongoing negotiation, not a one-time event-
• Rely most heavily on an agent when emotional biases cloud the principal's reason:

Sternlight Asks: Are lawyers needed for ADR?

• Yes, they can help a lot.

• Knowledge and strategy about process

• Gathering and presenting factual information

• Researching and presenting legal arguments

• Empowering clients (provide support).

• Drafting agreements..

• One of the goals of ADR might be to dispense with the needs for lawyers, but they are helpful right now.

Client-Centered and Problem Solving Approaches

• Lawyers can sometimes convert a lay story into a law story and focuses on the interest of the client, but not just the narrow legal issues they deal with.

• Kruse: Client-centered approach encourages lawyers to unlearn issue-spotting and approach their clients as whole persons.

• Active listening is essential to ask open-ended questions.

• Moral neutrality helps give clients bad advice, which sacrifices their humanity in the name of self-evident goods.

• Moral values should still be inserted into the utilitarian calculation:

• An attorney's obsession with the future may be misled.

• Discovering the Clients' Interests Through Interviewing is by Sternlight and Robbennolt; in person interviews are encouraged with clients should be to obtain information, counseling, and rapport.

• In person interviews are more personal along with cultural sensitivity and the avoidance of stereotypes

• Use open-ended questions

• Listen effectively and respond encouragingly, don't interrupt and help clients remember, build trust, and be aware of cognitive biases.

• Verify Veracity & Remember the Interview.

• The first client interviews and ice-breaking is active, responsive, and expressive listening.

Tips:

• Focus on the emotional radar of your clients.
• Communicate that you understood and have sympathy//empathy (sharing and understanding). Someone apathy builds connection while sympathy cause disconnect is let client know that they are being understood.
• Is it also effectiveness depends on cultural/personal preferences
• Use New Tral topics about commons/follow up on cue in office.

Communication Techniques

• Active listening: repeat what client said but not interrupt client/get notes!
• Purpose: What do you get from the getting this Solved- Learn Fact's Get Human get goals under interests
• Interview= what is the case
• Loop: try 2 Understand/Party confirmation received
• Frame switch perspectives

Negotiation: Concepts and Models

• Your goals about the process and the outcome of a negotiation = determine how you choose a method
• Williams: conventional adversarial Model
• Stage- Orientation/positioning
• Argumentaion
• Emergency
• Goals set outcome The best strategy to defect has the lowest average time for everything to occur

Most important for 2 sides = find way co-operate but not expensive.

• Negotiation CAN: = cooperation/ordination - Lesson
• Common sense - is that 2 sides need gain from cooperating costly.
• Be clear/ be 1sr 2 deflict
• Nash equil: is assumption. Player have no need shift strategy to know the others
• • 1 help / 1 willing (risk show / cooperate show)- to show = differences to help with = cooperation.
• Model = Menkel/Medow. = to get/ do what you cannot
• Approach: What we see: Orientation in Mindset Behaviour and Results

Approaches to win/lose?

• Competitive: Rude!
• Co-operate: relationships is friendly
• Problem SO - all have needs!
• Share: Spilit = Mixed-goodpaster
• Good pasture- competition lead domination because= no trust

Mediation- What

• More bid or vulnerability = know approach how
• Model Kenkel Need to unearth actual not just (More) - Rogers
• Liston/ what we are here 1 = more what.

Is not so here = what about these

• We can hurt the agreement
• Positional Endangers An Relationships (Not Good)

Good/ what

• Separate then
• Focus to interest & good value
• Prevents by doing the above

Why: Model is important

Why- Avoid is -Low of everything the

• Collaboration is + what get
• B/S