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The essential characteristics and common subtypes of arbitration, including labor arbitration, international commercial arbitration, maritime arbitration, and securities arbitration. It also discusses the legal considerations surrounding arbitration, such as vacating awards, arbitration and res judicata, and judicial review.
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I. Intro to ADR (Introduction) A. Methods and Common Characteristics
b. Private c. Faster d. Win-win situation e. Possibility of expert arbitrators in complex suits. f. Can avoid complex international legal contradictions g. Good solution for courts which see themselves as problem solvers h. Good at divorce mediation, better application for protecting public policy of marriage.
c. Exploit it. d. Without getting to it, you will not be able to settle.
v. Threats have to be fully comprehended and appreciated by the opponent, and legal based to follow through on. vi. Rational and emotional appeals vii. Ridicule and Humor - use embarrassment to get opponents to see your side. · Makes the negotiator more likeable. viii. Control the agenda - influence the order in which issues are taken up. ix. Intransigence - only works for risk adverse - refuse to go any further until some concession is made. x. Straightforwardness - surprise them with complete candor. xi. Flattery xii. Manipulation of contextual factors - psychological advantage if you can get your opponent to believe your spin on things. xiii. Silence - just don't say anything. Only the amateur fears silence. xiv. Patience - let your opponent talk himself to death, wear him down. xv. Creation of guilt, embarrassment or indebtedness - make him "owe you one". · Downside: a simply apology may defuse this. xvi. Constructive Ambiguity - people can't agree on something? Draft something that appears to cover the matter, but does not actually resolve anything. Then, move on.
c. May produce a settlement which is less than optimal for client (i.e. opposing party would have settled for less under traditional negotiations).
c. Government negotiators rarely possess the authority needed to bargain. d. Govt officials are also less likely to make decisions - they can't get in trouble for decisions they don't make. e. Opponents should give all information necessary to principle offer and make a case for settling. V. Negotiation Ethics A. Appropriate and Inappropriate misrepresentations
a. Mediator selection - not as difficult as arbitrator selection, but not easy, either. i. Generally, done by exchanging independent lists of mediators and seeing where there might be a match. Repeat until match is found. ii. Helps to be on good terms with opposing counsel. iii. Usually want someone with some experience in the field being mediated. b. Timing of initial mediation intervention c. Party and mediator preparation d. Preliminary mediator-party contact
· Parties consider the mediator a lawyer. · How to avoid creating an attorney-client relationship.
e. How is Labor Arbitration and "industrial due process" different from Constitutional "Due Process" - do arbitration parties override the Constitution? f. Non-union arbitration i. Is participation really voluntary? Is consent valid? ii. AAA refuses to hear non-union arbitration cases where employee rights are restricted (i.e. right to an attorney, right to bring claims for damages, etc.) g. Interest arbitration i. Decides a feature of the relationship between the two parties, not their "rights". ii. Example: wages, hours of employment, but not right to sue, right to attorney, civil rights, etc.
d. More closely resembles litigation i. Panel of three arbitrators - one chosen be each the defendant and plaintiff, the third chosen by the two arbitrators. ii. Not necessarily more speedy than conventional trials. iii. Usually get a written opinion. e. International arbitration is allowable for U.S. companies doing business abroad even when the same case (i.e. antitrust) is NOT arbitrable between two U.S. companies (Mitsubishi Motor Corp. v. Soler Chrysler-Plymouth) i. SCOTUS is very amenable to international arbitration.
ii. Allowed state courts to hear claims to compel arbitration even in interstate commerce activities where a separate, federal, subject matter jurisdiction or diversity did not exist. IX. Arbitration Preemption and the Relevance of State Arbitration Law A. Southland Corp. v. Keating (1984)- federal preemption of state law
a. Per Keating, the FAA preempts state law only when the state law requires a judicial proceeding even though the parties agreed to arbitrate. C. Allied-Bruce Terminix v. Dobson (1995)
c. Dissent: Arbitration is supposed to be about deciding factual controversies arising out of a valid contract, NOT whether or not the entire contract (including the arbitration clause) is valid. i. Also is inconsistent with future holdings which says laws regarding arbitration clauses can not apply to only the arbitration clause, but must apply to the contract as a whole (Casarotto)
c. Arbitration is compelled if either party options for the "may" arbitrate - they both must agree not to arbitrate in order to get out of it. d. Dissent argues that the contract must be construed against the drafter, who is the one requesting compelling arbitration. Compelling arbitration goes against general state laws in contract interpretation.