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Exam 4: Alternative Dispute Resolution

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Question 31

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Which of the following is generally true regarding minitrials?

A) It is more costly than arbitration.
B) In a typical minitrial, business representatives have settlement authority.
C) A minitrial utilizes a jury to make a recommended decision.
D) A minitrial must follow and come after a failed mediation.
E) A minitrial must follow and come after an arbitration.

F) A) and D)
G) A) and C)

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Question 32

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In which of the following do parties select a neutral third party and explain their respective positions to this neutral, who then evaluates the strengths and weaknesses of the case?

A) Summary jury trial
B) Med-arb
C) Early neutral case evaluation
D) Private trials
E) Neutral submission

F) None of the above
G) B) and C)

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Question 33

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"Pet Flicks." Jill went to work as an independent contracting photographer for Exotic Pet Flicks, a company specializing in photographing exotic pets, such as monkeys and snakes, with their owners. The company's home office was in California, but Jill worked in Florida. Before she started work, Jill signed an agreement to arbitrate any dispute she had with the company. The arbitration agreement provided that in the event of a dispute, Jill would completely cover the cost of the arbitration; that she could only receive up to $150 in damages regardless of her claims, punitive or otherwise; and that any arbitration would be conducted at the company's home office. The agreement also provided that the arbitrator was not bound to strictly follow the official court rules of evidence. Jill signed the agreement because she really needed a job and liked animals. Her only previous animal photography experience, however, had been with cats and dogs. Jill's contract provided that she would be paid $100 per shoot and that the company would take steps to ensure her safety. One day she was called in to photograph a skunk and its owner. She was told by the receptionist at Exotic Pet Flicks that the skunk had been altered so that it could not spray. Jill felt safe. Unfortunately, the skunk had not been altered. Just as she was starting to shoot, the skunk became upset. It ran over, sprayed Jill, and in the resulting commotion, Jill's expensive camera was knocked over and broken. Plus, Jill's outfit was ruined and she stank for days. Jill wants to sue Exotic Pet Flicks for $5,000 to cover the cost of her camera, her clothing, and her general stinkiness for several days. Jill says that she cannot afford to pay for the arbitration. -What effect would the provision requiring that she pay have on the agreement?

Jackie is hiring Ron to do clean up and maintenance, as an independent contractor, for her building which has several tenants. She is aware that Ron has sued some previous building owners. He however, does a good job, and she would like to hire him. Ron has agreed to sign an arbitration agreement. What should Jackie do to have a binding agreement that will be enforced?

Which of the following is a type of ADR?

According to the text, which of the following is true regarding defenses to an arbitration award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards?

A[n] ______ clause has been defined as one in which the terms are "manifestly unfair or oppressive and are dictated by a dominant party."

What was the result in the Case Opener in which an employee of Hooters complaining of sexual harassment attempted to avoid a signed arbitration agreement?

Courts are generally critical and unsupportive of ADR methods.

Cindy and Clowie have a dispute regarding ownership of a dog, Rascal. Cindy removed Rascal's tags in order to give him a bath. Knowing what was coming, Rascal made a run for it and ended up at Clowie's home down the street. When Cindy saw Clowie walking Rascal, she demanded his return. Clowie refused. A lawyer in the neighborhood suggested either a neutral case evaluation or mediation in an attempt to resolve the feud. Describe mediation and neutral case evaluation. Which would you suggest and why?

Mediation programs are underway in _____ of state courts.

How are arbitrations similar and dissimilar to a court trial?

"Lawn maintenance." Bob and Susan ran a lawn maintenance company for several years. They, however, encountered a dispute regarding the allocation of profit and agreed to discontinue their business. They cannot agree on a number of issues involving not only profits, but also winding up the business, disposing of equipment, and other matters. They agreed to hire an arbitrator to settle their disputes. Bob suggested that they use a local lawyer named George to arbitrate the matter, and Susan agreed. Susan had some medical problems and requested that the arbitration be postponed for a short time. Bob objected to her request. George would not agree stating to Susan's request for a postponement stating that any arbitration proceeding must be heard within 30 days and that the time period was nearly over. George conducted the arbitration hearing. He refused to hear any evidence from any witnesses explaining that he only had the authority to hear testimony from Bob and Susan. Therefore, Susan was not able to present testimony of a property appraiser she had hired. George proceeded to rule in favor of Bob on all counts. Susan was very discouraged and discussed the situation with her friend Sally. Sally said "My goodness! Didn't you know that George and Bob play golf together every week, that Bob is married to George's cousin, and that Bob has loaned money to George in the past?" Susan immediately calls George and asks him about his connection with Bob. George acknowledges those connections. He tells Sally, however, that he was perfectly fair and that there is nothing she can do. The Federal Arbitration Act applies. -Did George act properly in hearing the dispute?

Several merchants signed a binding arbitration agreement with American Express Co. The arbitration agreement included a clause prohibiting class action arbitration. Later, after a serious dispute arose involving a federal statute, the merchants wanted to pursue class action arbitration against American Express arguing that it would be too expensive to pursue the claims individually. Assuming the Federal Arbitration Act applies, how should a court rule on the issue?

"Sexual harassment ADR." Jenny works at the Mexican fast-food restaurant which is owned by an international company located in Mexico. Jenny is very angry with her supervisor, Sleaze, as he has been making inappropriate sexual comments to her and other employees. Jenny decides to sue and retains a lawyer, Brice. Brice talks with the owners of the restaurant and is informed that Jenny signed an agreement to mediate and also to arbitrate any claims. Jenny informed Brice about other employees who entered into such agreements and later complained of harassment. Brice promises her that under federal law, he is legally entitled to get copies of all documents used during any other mediations and arbitrations and that he is also entitled to get detailed information regarding what was said and agreed upon by them. Brice also tells Jenny that, while he is not going to bring it up now, if they so choose, Brice and Jenny can avoid the arbitration agreement because under a new federal law, such agreements cannot be enforced if one of the companies involved is internationally based. He also tells Jenny in response to her question about the possibility of mediation in her case to forget it because mediation is pretty much the same thing as arbitration. Brice tells Jenny that an option is to arbitrate and, if the outcome is bad at arbitration, file a court action in federal court. Brice says that the federal court judge would not consider an arbitrator's decision in making a determination. -Is Brice correct that a federal law provides that arbitration agreements involving international businesses are unenforceable?

In an early neutral case evaluation, the neutral provides a binding ruling.

"Lawn maintenance." Bob and Susan ran a lawn maintenance company for several years. They, however, encountered a dispute regarding the allocation of profit and agreed to discontinue their business. They cannot agree on a number of issues involving not only profits, but also winding up the business, disposing of equipment, and other matters. They agreed to hire an arbitrator to settle their disputes. Bob suggested that they use a local lawyer named George to arbitrate the matter, and Susan agreed. Susan had some medical problems and requested that the arbitration be postponed for a short time. Bob objected to her request. George would not agree stating to Susan's request for a postponement stating that any arbitration proceeding must be heard within 30 days and that the time period was nearly over. George conducted the arbitration hearing. He refused to hear any evidence from any witnesses explaining that he only had the authority to hear testimony from Bob and Susan. Therefore, Susan was not able to present testimony of a property appraiser she had hired. George proceeded to rule in favor of Bob on all counts. Susan was very discouraged and discussed the situation with her friend Sally. Sally said "My goodness! Didn't you know that George and Bob play golf together every week, that Bob is married to George's cousin, and that Bob has loaned money to George in the past?" Susan immediately calls George and asks him about his connection with Bob. George acknowledges those connections. He tells Sally, however, that he was perfectly fair and that there is nothing she can do. The Federal Arbitration Act applies. -According to the text, which of the following are criticisms of arbitration?

"Sexual harassment ADR." Jenny works at the Mexican fast-food restaurant which is owned by an international company located in Mexico. Jenny is very angry with her supervisor, Sleaze, as he has been making inappropriate sexual comments to her and other employees. Jenny decides to sue and retains a lawyer, Brice. Brice talks with the owners of the restaurant and is informed that Jenny signed an agreement to mediate and also to arbitrate any claims. Jenny informed Brice about other employees who entered into such agreements and later complained of harassment. Brice promises her that under federal law, he is legally entitled to get copies of all documents used during any other mediations and arbitrations and that he is also entitled to get detailed information regarding what was said and agreed upon by them. Brice also tells Jenny that, while he is not going to bring it up now, if they so choose, Brice and Jenny can avoid the arbitration agreement because under a new federal law, such agreements cannot be enforced if one of the companies involved is internationally based. He also tells Jenny in response to her question about the possibility of mediation in her case to forget it because mediation is pretty much the same thing as arbitration. Brice tells Jenny that an option is to arbitrate and, if the outcome is bad at arbitration, file a court action in federal court. Brice says that the federal court judge would not consider an arbitrator's decision in making a determination. -Was Brice correct when he told Jenny that if she lost at the arbitration level, a federal judge would consider the case anew without consideration of the arbitration agreement?

Negotiation is a bargaining process in which disputing parties interact informally, but only with lawyers, to attempt to resolve their dispute.

Which of the following is true regarding arbitration in Brazil?