- (8/25): General Introduction to Dispute Resolution Processes → Riskin (1–31 & 170–190); Yes (1–14)
- (9/8): Negotiation → Riskin (98–131); Yes (15–94)
- (9/15): Negotiation → Riskin (131–158); Yes (97–187)
- (9/22): Negotiation / Mediation (Asg 1 Due)
- (9/29): Mediation → Riskin (191–233 & 267–289)
- (10/6): Mediation → Riskin (289–301); Uniform Mediation Act, N.J.S.A. § 2A: 23C-1 et seq.; AAA Mediation Rules (handout)
- Rules Governing the Courts of NJ, R. 1:40 (CDR); Local Rules of the NJ Fed. Dist. Court, Rule 301.1;
- (10/13): Arbitration - Background and Statutory Framework → Riskin (313–338); US Arbitration Act, 9 USC §1 et seq.;
- Revised Uniform Arbitration Act, N.J.S.A. § 2A: 23B-1 et seq.
- (10/20): Arbitration – Case Law → Riskin (338–366);
- (10/27): Arbitration – Recent Case Law Developments (Asg 2 Due) → Riskin (375–385); Green Tree v. Bazzle, 539 US 444 (2003)
- Hall Street Associates, LLC v. Mattel, 128 S. Ct. 1396 (March 25, 2008)
- (11/3): Arbitration – Recent Case Law Developments → Riskin (366–375); Delta Funding Corp. v. Harris, 189 N.J. 28 (2006)
- Muhammad v. County Bank of Rehoboth Beach, 189 N.J. 1 (2006)
- (11/10): Arbitration Practice → AAA Commercial Arbitration Rules (handout)
- (11/17): Arbitration Practice – Binding and Non-Binding → Rules Governing the Courts of NJ, R. 1:40 (CDR)
- (11/24): Arbitration, Mediation and Negotiation Ethics → Riskin (93-96, 160–170, 233-248); Code of Professional Conduct;
- American Bar Association/American Arbitration Association - Ethics Rules For Arbitrators & Mediator Ethics Rules (handouts)
- (12/1): Review
Introduction edit
NY Times article ( http://www.nytimes.com/2008/08/08/business/08law.html )
So why do people proceed to court, when they make out better by settling:
- Poor Evaluation of the Risks/Benefits
- Non-economic motivations (justice, vengeance, vindication, rigidity, reluctance to give in)
- Attorneys' interests (labour/wage whether contingent or hourly fees) cloud decision
Best Alternative To Negotiated Agreement ( BATNA )
Bargaining Zone a.k.a. Zone of Possible Agreement (ZoPA)
- The amount of overlap between each parties "reservation point"
Adversarial vs Problem-Solving Negotiation edit
Adversarial
- fixed pie
- extreme positions
- maximize gain
- withhold info
- anchoring
Problem-solving
- interests
- common ground
- disclose
Zero Sum
- I win, you lose
- Dissolution (Pie of assets to be split
- Much of litigation
Positive Sum
- Both get needs (Orange analogy: fruit vs. rind)
- Offers of non-monetary
- Expanding the pie
Arbitration process edit
Pre edit
- client/rep
- rep-to-rep
- summaries
- third parties
- order or request
- mediator/rep
- mediator to third party regarding disclosure
During edit
- party-to-party
- rep-to-rep
- all to mediator
- caucus
- third party
- mediator to parties
- private attorney/client communications
- the agreement
Post edit
- Implementation
- rep-to-rep
- rep-to-client
- client-to-client
- writing the K
- breach
- rep-to-rep
- rep=to=courts
- mediator report
- $ requests
to third parties
- discovery
- trial evidence
- mediator report
- $ requests
- referred to attorney
- help to undo goal
- opinion
Arbitration clauses edit
Hooters case
- Notice/limitation
- No SJ
- Arbitrator selection limited (one-sided/prejudiced) list
- Record - Only Hooters
- Claim specification & witness list
- Right to seek vacatur
- Cancel (one-sided)
- Scope change (one-sided)
- Change midstream
- No response necessary
Questions edit
RUAA vs AAA
Do you need to disclose conflict arising from?
- Partner in firm? Yes
- Previous friendship with witness? Yes
- Common organization membership with party/witness? Yes
- Referral relationship with attorney? Yes
might Ask for analysis of a case such as prima paint/first options/hall street
Forum
If you have an independent basis of jurisdiction diversity of citizenship, you can bring an FAA action in state court or compel removal to Federal court under Sec4 or stay fixed in Fed court under section 5.
FAA > RUAA > ArbAgreement > Rules
FAA is default setting & will govern, empowering the courts to offer particular remedies (ie. vacatur). If the agreement specifies the applicability of the RUAA, then they govern.
Threat of criminal prosecution impermissible, b/c of obstruction of justice (if you know of a crime, you can't profit by contract to not report)
Essay questions: Shorter the better, a sentence or two on each item, 10 sentences total
Disclosure obligations (ALWAYS disclose)
study FAA, RUAA, AAA rules covered & "getting to yes"
Caselaw in riskin, delta funding and mohammed
FAA is silent on consolidisation (but see RUAA)
Don't memorize citations
Contingency fees covered under NJ standards for Mediators
Don't worry about the ABA model standards, focus on the NJ standards for mediators
transformative vs facilitative mediation
looping in riskin