ADR

Texas ADR - Encouraging Resolution

• Texas promotes early resolution of pending legislation through voluntary settlement procedures
• ADR promotes informed use, outlines essential elements, and addresses concerns for realistic settlements
• ADR uses a neutral third party to facilitate settlement that ranges from voluntary to mandatory procedures
• A 1989 law dictates that Texas counties of over 150,000 people must conduct 2 settlement weeks yearly
• These settlement weeks include mediation and moderated settlement conferences

Trial By Special Judge

• Texas statutes allow pending civil cases to be stayed by a privately compensated judge if:
• All parties consent to waive jury trial
• The referring judge assigns a special judge
• Special judge qualifications include:
• Being a retired or former judge
• Having at least four years on the bench
• Not being removed for disciplinary reasons
• Possessing substantial specialty experience & CLE requirement currency
• Advantages include the right of appeal, enforceability mechanism, and decreased court workload
• Disadvantages include cost, a two-tiered justice system, lack of precedent, and reduced post-retirement judge availability

1987 Texas ADR Procedures Act Overview

• ADR procedures can occur before cases are filed with required client participation
• ADR is non-binding, confidential, and flexible
• ADR is an alternative, not a substitute for jury trials
• Parties in court-ordered ADR cannot be forced to settle
• Parties retain the option to proceed to trial if no agreement is reached
• ADR can be used for privacy, time efficiency, and maintaining business relationships
• ADR referrals can be initiated by parties, the court's order, or the court itself

Communications in ADR & Neutrality

• ADR participant communications are private and cannot be used as evidence
• Third-party neutrals need 40 hours of training but no specific professional background
• Those assisting in family disputes require extra training
• Neutrals cannot force settlements
• Concerns about objectivity require selecting another third-party neutral
• Facilitators are available via local Bar Associations and dispute resolution centers
• ADR is not used in cases with gross bargaining power disparities, such as those involving spousal or child abuse instances
• A separate Texas act addresses binding arbitration, but not negotiation

Procedures Under the Act: Mediation

• Mediation commonly occurs before a case is filed
• Mental health professionals usually assist in family-based mediation
• Mediators won't make decisions but will facilitate information exchanges
• Fair procedures ensure all sides have opportunity to express themselves
• Lawyers can attend, but parties get a chance to share their issues

Procedures Under the Act: Mini-Trials & Summary Jury Trials

• Mini trials are for corporate or government disagreements
• Decision-makers work to resolve disputes while protecting business interests
• Decision-makers with settlement powers meet with attorneys, who present evidence
• Panels generally consist of party representatives and an impartial third party
• Summary jury trials need a judge, courtroom, and jurors
• These jury trials require court orders and draw six jurors from the larger pool

Summary Jury Trial Process

• Summary jury trials follow standard trial procedure but limit questioning and evidence
• The jury's decision is advisory and is useful to assess credibility of witnesses
• Summary jury Trials are useful to assess factual damages
• Summary jury trials are useful as an indicator as to how good a complete trial will be

Non-Binding Arbitration & Moderated Settlement Conferences

• In Non-binding arbitrations, neutrals possess specialized experience in business or tech
• An impartial panel meets with parties, hears out presentations, and renders confidential advisory awards
• However, parties may stipulate that awards are binding
• This is commonly used to resolve labor and construction disputes
• Moderated settlement conferences offer confidential non-binding case evaluations by an impartial experienced attorney panel
• A judge can be present while behaving appropriately and encouraging settlement
• It provides evaluation of the case's strengths and weaknesses and can issue advisory opinions
• It can be used as context to further settlement negotiations

Negotiation - Key Aspects

• Important Negotiation tactics include:
• Good cop/bad cop
• Give and take
• Boundaries
• Creativity
• Boundaries of negotiation involves setting limits as to authority with clients

Charles Craver's Negotiation Process

• Preparation involves:
• Setting goals
• Defining authority and take-back limits
• Laws and Facts
• Preliminary Actions
• Numbers and Values
• Resistance Points
• Attorneys
• Info-gathering tactics include:
• Gathering important information
• Displaying restraint
• Bargaining is "distributive"
• Closing the deal includes:
• Solidifying and nailing down the agreed-upon terms
• Use interrogative/comparative

Negotiation Approaches

• Strategy is deciding to be adversarial or collaborate
• Personality indicates flexibility
• Adversarial Power Bargaining tactics involves
• Making concessions for pay
• Value of the client
• Additional compensation
• Maintaining Formalities
• Hiding Information
• Lacking Trust
• Exaggeration
• Problem solving is cooperative and involves:
• Focusing on duration
• Bonuses
• Being informal
• Willingness
• Justification
• Encouragement
• Compensation

Bracketing of Demands

• In negotiation, determine your:
• Opening offer
• Plan
• Willingness to give
• Demand
• Target
• Where you hope negotiation will land
• Realistic aspiration
• Resistance
• The least you can take for your client
• Distinguish between positions and interests
• Interest-based bargaining entails figuring out the underlying interest
• Position is what they're saying

Information Gathering: Key Aspects

• Information is valuable
• Avoid giving information away and be careful with both the giving and receiving
• Tips for gathering information involve
• Admitting ignorance
• Identifying key questions
• Prioritizing questions
• Adjusting tone
• Using T-funnel questioning
• Applying journalistic questions
• Being quite
• Reading Body Language
• Acknowledging and/or acknowledging avoidance
• Questions involve alternative parties, power considerations, and negotiator authority
• Protect and conceal information by giving non-specific responses, asking a questions, commenting, partially answering, deflecting and delaying, and asking the question's relevance

Bargaining Phase Strategies & Terms

• Distributive negotiation aims to get as much as possible
• Integrated negotiation wants to find common interest, must make willingness to trade known
• Bargaining planning identifies must-haves, targets, and resistance points
• Plan for starting negotiations first or second
• Remind parties of cost savings from settlement
• If petition is filed, start lower than damages claimed
• Understand some items will link with each other and/or be logically related
• Terms include opening offers, target and resistance points, and bargaining range

Key points for BATNA & Concessions & Tips

• BATNA means "Best Alternative to a Negotiated Agreement"
• ZOPA- the Zone of Potential Agreement, also known as the range between walkaways
• Concessions should be Principled, Reciprocal, and Follow a logical pattern
• Tips include avoiding making the first offer and justifying numbers

Drafting Contracts: Key Aspects

• A contract reflects the mutual understanding between parties:
• The drafter must consider current and future audiences
• The drafter must use plain English to be less ambiguous
• Contract riders add terms or clarifications to contracts
• Paragraphs requires Topic labeling
• Relational contracts govern extended relationships while transactions do not
• Relational contracts prioritize mutual goals rather than numbers

Drafting Process: Key Components

• The drafting process involves:
• Planning: Relational contracts focus more on goals
• Gathering: Client perspective and the law
• Organizing
• Drafting
• Critiquing
• Revising
• General Rules include ONLY one thing earth that the definition applies to.
• Also, no duplications, ensure no gaps, and don't double state numbers

Proper Contract Format

• Introduction Paragraph
• Complete sentences that include the nature of the involved document
• Who is speaking, often in CAPS
• Who it binds
• It should establish short forms
• Recitals are generally optional but should show consideration

Contract Body Considerations

• Sections should feature informative headings with definitions used only once with explicit terms
• Expressly obligate the tenant with future tense phrases like "tenant will pay..."
• Don't obligate anyone with a policy but use the present tense
• Ex: Rent is due
• Group related provisions together
• Use chronological order
• Describe conditions that come before disasters
• List favor provisions
• Detail actions before policies

More aspects that go into a contract

• Housekeeping and Standardized language will include modifications, assignments, notices, and damages
• Poorly drafted contracts require signatures with the dateline and the names of involved parties

Core Transactional Components of Contracts with Closings

• Closings occur when the core transaction of a deal is reached and both parties perform
• Closings are necessary when selling significant assets
• House sales are two simultaneous closings where the lender takes the security, and the money is moved

Contrasting Aspects of Documents that are Closed vs those that aren't

• Most Deals Don't Involve a Closing, Including
• Credit
• Licensing
• Service
• Closings need all deliveries involved

Document Design & Formatting

• Use left justification when drafting contracts
• Subsections must have a title and use indentions
• Each letter should be enclosed in parantheses
• If the section has no sub sections, it shouldn't be there
• Bolding should be used for:
• Titles
• Recital
• Headings
• Sections and Captions
• Use 11-12 point front
• Serif fonts help eyes keep moving, and lawyer make the most use of them
• San-serif fonts are better for works that need to be skimmed and are not used for office memos

Covenants - Key Terms

• Covenants are an important way to promise something
• A Covenant ensures damages if not done

To create and define a Covenant:

• To create a covenant:
• Make the party who shall have the duty subject of the sentence
• Add the word "shall" or "shall not"
• Do not use the word shall for any other purpose
• State clearly who has the duty and what exactly the person is supposed to do
• To create discretional authority, make the party the subject of the sentence
• Add the word "may"

Mediation - Resolution Concepts

• Mediation brings impartial communication and promotes recociliation
• Mediation has been common practice throughout history
• Key attributes of mediation include a focus on behavior and neutral third parties
• It's also less formal that at arbitration but more formal than negotiation
• benefits include affording timeliness and privacy

Goals of Mediation & Common Procedures

• The goals of mediation are to help parties define and solve disputes
• Common mediation techniques are a focus on caucuses and listening
• The process brings preliminary arrangements
• The goal is to find agreements during all exchanges

Arbitration - Resolution Types

• Arbitrators' ethics follow ABA guidelines, but they aren't held under Texas Guidelines
• Common forms of arbitration include labor, commercial, international, and maritime
• The Federal Arbitration Act applies to maritime transactions
• and worker exclusions

Arbitration - Authority

• Actions for written arbitration become binding
• Corrupt Actions can be deemed un-enforcable
• The Texas Arbitration acts mirrors the federal structure and will only hold if in writing
• All personal claims act in accordance with arbitration laws