question
Arbitration is a form of an Alternative Dispute Resolution (ADR) system that _____________.
answer
is used to avoid the expenses of litigation
question
Focus groups help the disputing parties settle their disputes by prompting them to _________.
answer
avoid going through either an arbitration or trial
question
An accurate statement about a STATUTORILY MANDATED ARBITRATION is that it __________.
answer
requires substantially less time than litigation
question
List the order of basic procedures for a successful mediation.
answer
1. Mediator explains the procedures to which the parties should agree
2. Parties make statements about the dispute
3. Exchange phase - mediators must attempt parties speak to one another
4. Possible solutions are brainstormed
5. Mediators must privately meet with the parties and their attorneys outside the presence of the other party
2. Parties make statements about the dispute
3. Exchange phase - mediators must attempt parties speak to one another
4. Possible solutions are brainstormed
5. Mediators must privately meet with the parties and their attorneys outside the presence of the other party
question
What are the basic forms of VOLUNTARY ARBITRATION?
answer
1. a POSTDISPUTE arbitration agreement
2. a PREDISPUTE arbitration clause
2. a PREDISPUTE arbitration clause
question
Does subsection (d) under section 10 of the Federal Arbitration Act require the court to review the merits of EVERY construction of a contract?
answer
No
question
Many courts argue that mandatory arbitration statutes that close the courts to the litigants are void against public policy because they _____________.
answer
1. Deprive one of liberty of contract and property without due process of law
2. Result in the unconstitutional delegation of judicial or legislative power
2. Result in the unconstitutional delegation of judicial or legislative power
question
Mediators are individuals who are _________.
answer
not permitted to impose a binding solution on the parties
question
The act of referring a matter to arbitration is known as ________.
answer
submission
question
The mediation process is an Alternative Dispute Resolution (ADR) technique that ______.
answer
does not need a judicial review
question
The process used to COERCE or PERSUADE someone to do what one wants them to do is referred to as _______.
answer
negotiation
question
What are the various aspects in the Judicial Review of Voluntary Arbitration Awards?
answer
-an arbitrator's findings on questions of both law and fact are conclusive
- it is more restricted than the appellate review of a trial court's decision
- the fact the an arbitrator made erroneous rulings during the hearing is no ground for setting aside the award
- an arbitration clause is liberally interpreted when the issue contested is in the scope of the clause
- it is more restricted than the appellate review of a trial court's decision
- the fact the an arbitrator made erroneous rulings during the hearing is no ground for setting aside the award
- an arbitration clause is liberally interpreted when the issue contested is in the scope of the clause
question
The private meeting between the parties and their attorneys & the mediator outside the presence of the other disputant is known as a(n) ___________.
answer
caucus
question
In the context of a principled, interest-based negotiation ______________ involves the application of accepted standards to the topic negotiated.
answer
Legitimacy
question
In the context of a principled, interest-based negotiation _______________ is an outcome that is possible without the agreement of the other party in a negotiation.
answer
An Alternative
question
T/F
Judicial review of voluntary/contract-based arbitration requires a DE NOVO review of the interpretation and application of the law by the arbitrators.
Judicial review of voluntary/contract-based arbitration requires a DE NOVO review of the interpretation and application of the law by the arbitrators.
answer
F
question
What are the features of Alternative Dispute Resolution (ADR) systems?
answer
ADR systems used by disputing parties may be part of a contractual relationship between those parties
Disputing parties do not have to begin a lawsuit to use any form of ADR
Disputing parties do not have to begin a lawsuit to use any form of ADR
question
T/F
Unlike alternatives, legitimacy involves having the parties state unsupported propositions in a negotiation.
Unlike alternatives, legitimacy involves having the parties state unsupported propositions in a negotiation.
answer
F
question
The ADR system is a technique that ____________.
answer
helps ensure the productive relationship needed for successful business transactions
question
What factors must be taken into consideration during the selection process of an arbitrator?
answer
- the number of arbitrators to be chosen
- the expertise of the arbitrator
- the expertise of the arbitrator
question
The judicial review of cases involving ________ issues controlled by the provisions of the Federal Arbitration Act.
answer
interstate commerce
question
An additional ADR technique in which parties resolve all the matters of contention that they can and then agree to arbitrate the unresolved matters has become known as ______________.
answer
Med-Arb
question
What constitutes a waiver of the right to seek a DE NOVO judicial review?
answer
the failure of a party to be present at an arbitration either by counsel or in person
question
What are the most popular ADR systems used by people and businesses attempting to resolve disputes?
answer
Arbitration & Mediation
question
What are the features of the Federal Arbitration Act?
answer
Arbitration agreements are considered enforceable, valid, and irrevocable by it
Courts are rigorously to enforce arbitration agreements under it.
Courts are rigorously to enforce arbitration agreements under it.
question
An arbitrator's award is valid as long as it ______.
answer
settles the entire contraversey
question
Arbitration is frequently preferred over litigation because of the use of _________ to resolve a dispute.
answer
an expert
question
The final step to a successful mediation is the ___________.
answer
writing & signing of the agreement by the disputing parties
question
Maya requesting the court to try the dispute between her and a colleague Anew following a mandatory arbitration that was not in her favor illustrates ________________.
answer
a DE NOVO review
question
A characteristic of an arbitrator's award is _________ .
answer
that it is final on all issues submitted
question
What are factors that determine how an arbitrator is selected?
answer
-the statute that requires the arbitration
- a provision in the agreement to arbitrate
- a provision in the agreement to arbitrate
question
Existing and potential conflicts can be handled productively because mediation typically focuses on ____________.
answer
getting the parties to negotiate through an interest-based method
question
Why do businesses tend to settle disputes with customers instead of going through the process of litigation?
answer
- individuals who have suits against large business corporations receive sympathy of the jury
- it is not good business from a goodwill and public relations standpoint to sue a customer
- it is not good business from a goodwill and public relations standpoint to sue a customer
question
What governs the failure or success of the use of ADR systems?
answer
negotiation
question
A court is willing to reverse the award granted in a voluntary arbitration proceeding only when the __________.
answer
arbitrator's involvement in fraud or other inappropriate action can be proven
question
Under what grounds can an arbitration award be set aside or vacated according to section 10 of the Federal Arbitration Act?
answer
- if the award was procured by corruption, fraud, or other undue means
- if the arbitrators were guilty of misconduct in refusing to hear evidence pertinent and material to the controversy
- if a definite award upon a subject matter submitted was not made because the arbitrators imperfectly executed their powers
- if the arbitrators were guilty of misconduct in refusing to hear evidence pertinent and material to the controversy
- if a definite award upon a subject matter submitted was not made because the arbitrators imperfectly executed their powers
question
While reviewing the voluntary arbitration award, the courts ___________________.
answer
do not interfere with an arbitrator's award by examining the merits of the controversy
question
What are the characteristics of the process of arbitration?
answer
-it helps ease congested court dockets
- it submits many disputes to experts for solutions
- it serves as a substitute for litigation
- it provides a relatively quick resolution of disputes
- it submits many disputes to experts for solutions
- it serves as a substitute for litigation
- it provides a relatively quick resolution of disputes
question
In most states, an arbitrator's award must be __________.
answer
in writing
question
What is a true statement about SUBMISSION?
answer
an arbitrator is authorized by the parties to make a decision that binds these parties and resolves their dispute
question
What are the primary reasons for the increase in the number of mediations as a form of ADR technique?
answer
Reduction of the legal system governing the process
the retention of control over when to settle and when to continue disputing by the disputing parties
lesser cost as compared to arbitration and litigation
the retention of control over when to settle and when to continue disputing by the disputing parties
lesser cost as compared to arbitration and litigation
question
Arbitrators are generally chosen by the ____________.
answer
disputing parties
question
What commonly appears in business contracts?
answer
the Predispute arbitration clause
question
What arises when parties already in dispute decide that arbitration is better than litigation?
answer
Postdispute arbitration agreement
question
Why do attorneys often use FOCUS GROUPS in significant cases?
answer
-they provide insight into possible jury reaction to the evidence
-they point up weakness in the case in question
-they point up weakness in the case in question
question
What is not required to be set forth by an arbitrator's award?
answer
-conclusions of law
-the reasons for the award
-findings of fact
-the reasons for the award
-findings of fact
question
What actions constitute arbitral misconduct to justify vacating an arbitration award according to subsection (c) under section 10 of the Federal Arbitration Act?
answer
-Participation in communications with a witness or a party without the consent of the other party
-receipt of evidence as to a material fact without notifying a party
-conducting deliberation in the absence of a member of an arbitration panel
-receipt of evidence as to a material fact without notifying a party
-conducting deliberation in the absence of a member of an arbitration panel
question
How are Voluntary Arbitration & Mandatory Arbitration similar?
answer
an agreement to submit an issue to arbitration is considered IRREVOCABLE
question
A Statutorily Mandated Arbitration is an ADR technique that ____________.
answer
requires a higher level of judicial review of an award
question
Arbitration is preferred to litigation because _________.
answer
- it is quicker and efficient
- a judge cannot be as informed as an expert arbitrator
- a judge cannot be as informed as an expert arbitrator
question
T/F
Submission is the process of concluding an arbitration proceeding.
Submission is the process of concluding an arbitration proceeding.
answer
F
submission is the process of beginning an arbitration proceeding. it is the act of referring a matter to arbitration
submission is the process of beginning an arbitration proceeding. it is the act of referring a matter to arbitration
question
What are some advantages of the process of mediation?
answer
-the disputing parties retain full control over the resolution of the controversy
-the parties can decide the amount of time and effort that need to be put into the process
-the parties can decide the amount of time and effort that need to be put into the process
question
The duties and rights of the parties to a submission are described and limited by their agreement in the absence of a(n) _________.
answer
statute
question
T/F
The chances of a negotiated settlement through positional bargaining are minimal because positional bargaining focuses only on the underlying conflicts.
The chances of a negotiated settlement through positional bargaining are minimal because positional bargaining focuses only on the underlying conflicts.
answer
F
question
In positional bargaining, the _____________ starts negotiating with the highest reasonable price
answer
Seller
question
In positional bargaining, the ____________ starts negotiating with the lowest reasonable price.
answer
Buyer
question
Attorneys frequently use _____________ in significant cases recognizing that a jury's function to determine the facts.
answer
focus groups
question
What are the 7 elements of principled interest-based negotiation?
answer
Relationship
Commitment
Communication
Alternatives
Interests
Legitimacy
Options
Commitment
Communication
Alternatives
Interests
Legitimacy
Options
question
T/F
Fraudulent or arbitrary actions by an arbitrator can be corrected by judicial review.
Fraudulent or arbitrary actions by an arbitrator can be corrected by judicial review.
answer
T
question
Submission by contract occurs if ______________.
answer
the parties enter into an agreement to arbitrate an existing dispute
question
T/F
A POSTdispute agreement is considered to be the wiser and ultimately more efficient approach to ADR than a PREdispute arbitration.
A POSTdispute agreement is considered to be the wiser and ultimately more efficient approach to ADR than a PREdispute arbitration.
answer
F
question
Occurs when the disputing parties agree to use this form of ADR
answer
voluntary arbitration
question
Occurs when a court or statute requires parties to arbitrate
answer
mandatory arbitration
question
T/F
Mediators utilize the principles of interest-based negotiations
Mediators utilize the principles of interest-based negotiations
answer
T
question
Mediation is the process by which a 3rd person, called a ______________, attempts to assist disputing parties in resolving their differences.
answer
mediator
question
An ADR system in which disputing parties agree to have a 3rd party decide the merits of the dispute is known as ____________.
answer
arbitration
question
What are some of the various aspects of the process of mediation?
answer
-the conduct of the mediator is not subject to any judicial review
- the process of mediation does not involve the legal issues found in the arbitration process
- the process of mediation does not involve the legal issues found in the arbitration process
question
An aspect of negotiation is that ____________.
answer
the parties are negotiating even as evidence of a conflict is exhibited
question
Most people perceive conflicts as bad because ___________.
answer
of the fact that they lead to disputes
question
Businesses settle many disputes even though they might possibly prevail in litigation because _____________________ & ____________________________.
answer
juries often decide the size of the verdict against businesses due to their presumed ability to pay
it can be cheaper to settle a dispute rather than to litigate it
it can be cheaper to settle a dispute rather than to litigate it
question
The decision handed down by arbitrators or an arbitrator after and arbitration is known as a(n)
answer
award
question
The Federal Arbitration Act (FAA) covers _________.
answer
any arbitration clause in a contract that involves interstate commerce
question
What are some features of a Statutorily Mandated Arbitration?
answer
cases are usually presented to a panel of 3
arbitrators are paid a per-diem fee
arbitrators are paid a per-diem fee
question
Most state statutes that authorize voluntary arbitration require the agreement to _________.
answer
arbitrate to be in writing
question
Most expensive in emotions, time, and cost
answer
Trial and appeal
question
Least expensive in cost, time, and emotion
answer
Negotiated settlement
question
They exist whenever there are 2 or more points of view
answer
conflicts
question
They arise when one party makes a claim that another party denies
answer
disputes
question
During the caucuses, the mediator must _____________.
answer
win the trust and confidence of each party to the dispute
question
An arbitrator's award can be vacated if it can be proved by fraud, corruption, or other undue means
answer
Subsection (a) under section 10 of the Federal Arbitration Act (FAA)
question
The use of corrupt or partial means that an arbitrator lacks the ability to consider evidence and to reach a fair conclusion
answer
Subsection (b) under section 10 of the Federal Arbitration Act (FAA)
question
It covers arbitral misconduct which does not lend itself to a precise definition
answer
Subsection (c) under section 10 of the Federal Arbitration Act (FAA)
question
It involves the question of whether the arbitrators exceeded their power, relates to the arbitrability of the underlying dispute.
answer
Subsection (d) under section 10 of the Federal Arbitration Act (FAA)
question
A characteristic of the process of mediation is that it ________________.
answer
does not involve an informal presentation of evidence
question
When a court tries the issues that were resolved through arbitration anew, as if no arbitration occurred, is is known as _____________.
answer
a de novo review
question
In the context of mandatory arbitration statutes, when is an arbitration required?
answer
Only in cases which a party has demanded a jury trial
question
T/F
The flexibility of mediation allows parties to utilize this process in conjunction with other dispute resolution systems
The flexibility of mediation allows parties to utilize this process in conjunction with other dispute resolution systems
answer
T
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