ADR Law and Practice
Edward A. Dauer
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Updated annually or when needed. Appendices. Index. 900 Pages
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Chapter I Introduction
Chapter II The History and Development of ADR
Chapter III ADR in the Litigation Setting
3.1 Introduction
3.2 Use of ADR in Single Case Litigation
3.2(a) Generally
3.2(b) Facilitating Negotiations
3.2(c) ADR in Fact-Gathering and Case-Evaluation
3.2(d) Resolving Selected Issues
3.3 Use of ADR in Multiple Case Litigation
3.3(a) ADR and the Costs of Claiming
3.3(b) Comprehensive Claims Management
3.3(c) Chronological Considerations
Chapter IV Litigation, Negotiation and Settlement
4.1 Introduction
4.2 Litigation, Pro and Con The Characteristics of Litigation
4.2(a) Disadvantages
4.2(a)(1) Expense
4.2(a)(2) Loss of Control over the Process
4.2(a)(3) Lack of Expertise of the Tribunal
4.2(a)(4) Delays
4.2(a)(5) Narrowed Issues and Limited Remedies
4.2(a)(6) Collaborative Outcomes Are Less Likely
4.2(a)(7) Polarization of the Parties
4.2(a)(8) Public Scrutiny
4.2(a)(9) Disruptions
4.2(b) Advantages
4.2(b)(1) Finality
4.2(b)(2) Binding and Enforceable
4.2(b)(3) Appeals Allowed
4.2(b)(4) Procedural Safeguards
4.2(b)(5) Established Norms
4.2(b)(6) Authoritative and Precedential
4.2(b)(7) Independent and Institutionalized
4.2(b)(8) Qualifications and Controls
4.2(c) Summary
4.3 Negotiation and Settlement
4.3(a) Introduction
4.3(b) "Positional" Settlement Negotiations
4.3(c) "Collaborative" Negotiation
4.3(d) Cooperative and Competitive Negotiation Strategies
4.4 Other Negotiation Pitfalls, Related to ADR
4.4(a) The Opposing Attorney Prevents Communication
4.4(b) Opponent’s Lack of Preparation
4.4(c) Widely Disparate Assumptions, Norms or Valuations
4.4(d) Emotional and Organizational Blockages
4.4(e) Other Intrinsic Blockages
4.5 Summary: The Role of ADR
Chapter V Overview of Dispute Resolution Procedures
5.1 Introduction
5.2 Dispute Resolution Procedures
5.3 Private ADR, Court-Annexed, or In-Court
5.4 Decision, Advice or Facilitation
Chapter VI Diagnosing Cases for ADR
6.1 Introduction
6.2 General Features – Litigation and Alternatives
6.3 Factors for Diagnosing Cases for ADR
6.3(a) Multi-Factor Analysis
6.3(b) Additional Factors in ADR Selection
6.3(c) Diagnosing Cases for ADR: A Checklist
6.4 Discussion of Factors
6.4(a) Characteristics of the Case
6.4(a)(1) Amount at Issue
6.4(a)(2) Legal and/or Factual Issues
6.4(a)(3) Will the Desired Outcome Require
Continuing Supervision or Compulsion?
6.4(a)(4) Are the Procedural Features of
Litigation Working For or Against You?
6.4(a)(5) One-Time or Ongoing Dispute
6.4(b) Attributes of the Parties
6.4(b)(1) What is the Relationship Between
the Parties?
6.4(b)(2) What Are the Parties’ Resources
with Respect to Wealth and Power?
6.4(b)(3) Parties’ Conflict Resolution Skills
6.4(b)(4) Adversary’s Reluctance to Engage in ADR
6.4(b)(5) Importance of a "Legal" Outcome
6.4(b)(6) Opposing Representative’s Position in
its Organization
6.4(b)(7) Number of Parties or Interests
6.4(c) Features of the Environment
6.4(c)(1) Underlying Cause of Dispute
6.4(c)(2) Consequences of Using a
Conventional Process
6.4(c)(3) Parties’ Desire to Establish a Precedent
6.4(c)(4) Matter Linked to Other Parties or Interests
6.4(c)(5) Significant Tactical Advantages to
a Particular Process
6.4(d) Barriers to Settlement
6.4(d)(1) Generally
6.4(d)(2) Benefits to Party by Delay or the
Infliction of Cost
6.4(d)(3) Opposing Counsel’s Difficulty
Communicating or Negotiating
6.4(d)(4) Differences in Evaluation of Case
6.4(d)(5) Emotional Tenor of the Matter
Chapter VII Implementing ADR
7.1 Initial Practice Considerations
7.1(a) Generally
7.1(b) Client Satisfaction and Costs
7.1(c) Blockages and Impediments
7.1(c)(1) The Lawyer’s Considerations
7.1(c)(2) The Client’s Considerations
7.1(c)(3) The Reluctant Opposing Counsel
7.1(c)(4) A Note on Compulsory ADR and Rule 16
7.1(d) Selecting a Neutral
7.2 Implementing ADR in Particular Settings
7.2(a) Generally
7.2(b) Domestic Relations Cases
7.2(b)(1) Choosing the Appropriate Process
7.2(b)(2) Choosing the Neutral
7.2(b)(2)(A) Generally
7.2(b)(2)(B) Empowerment and Recognition
7.2(b)(2)(C) Med-Arb
7.2(b)(2)(D) Co-Mediation
7.2(b)(3) The Mediation Session
7.2(c) Corporate Clients – A Systems Approach
7.2(c)(1) Generally
7.2(c)(2) Mainstreaming
7.2(c)(3) Challenging the Culture of Litigation
7.2(c)(4) Dismantling the Culture of Litigation
7.2(d) Health Care: Adapting ADR to an Industry
7.2(d)(1) Generally
7.2(d)(2) The Structure of the Industry
7.2(d)(3) Relationships
7.2(d)(4) Law
7.2(d)(5) Practices
7.2(d)(6) Conclusion
7.2(e) Personal Injury Claims and Defense
7.2(e)(1) Some Particular Considerations
7.2(e)(2) ADR and Litigation: Clients and
Other Concerns
7.2(e)(3) Pros and Cons of Litigation
7.2(e)(3)(A) Disadvantages of Litigation
7.2(e)(3)(B) Advantages of Litigation
7.2(e)(4) Indicators for ADR in Aid
of Settlement
7.2(e)(5) ADR and the Question of Liability
7.2(e)(6) Selecting ADR Procedures
7.2(e)(7) Use of ADR in Conjunction
with Litigation
7.2(e)(8) Use of ADR in Facilitating Negotiations
Chapter VIII ADR Procedures
8.1 Introduction
8.2 The Basic Types: Decisional, Facilitative and Advisory
8.2(a) Generally
8.2(b) The Objectives of the Basic Types
8.2(c) The Lawyer’s Roles: Preparation and Representation
8.3 Arbitration
8.3(a) Generally
8.3(b) Arbitration’s Pros and Cons
8.3(c) Structure of the Process
8.3(c)(1) Generally
8.3(c)(2) Initiation and Reply
8.3(c)(3) The Arbitrator
8.3(c)(4) Preliminary Conferences
8.3(c)(5) Preparation
8.3(c)(6) The Hearing
8.3(d) Conventions and Legal Considerations
8.3(d)(1) Discovery
8.3(d)(2) The Arbitration Award
8.3(d)(3) Appeal
8.3(e) Practice Points
8.3(f) Applications
8.3(f)(1) Arbitration verses Mediation
8.3(f)(2) Variations: High-Low and Baseball
8.4 Mediation
8.4(a) Generally
8.4(b) Structure
8.4(c) Expert Witness
8.4(d) Applications
8.4(e) Practice Points
8.4(e)(1) Getting Started
8.4(e)(2) The Mediation Agreement
8.4(e)(3) Pre-Session Activities
8.4(e)(4) The Mediation Process
8.4(f) Variations on the Theme
8.4(f)(1) Generally
8.4(f)(2) Co-Mediation
8.4(f)(3) "Op-Med"
8.4(f)(4) "Michigan Mediation"
8.4(f)(5) Med-Arb
8.4(g) Concluding the Mediation
8.5 Mini-Trials: An Advisory Process
8.5(a) Generally
8.5(b) Structure of the Process
8.5(c) Negotiating the Ground Rules: Practice Considerations
8.5(d) Additional Practice Points
8.5(e) Applications
Chapter IX Additional Private Procedures
9.1 Introduction
9.2 Private Judging/Orders of Reference
9.2(a) Generally
9.2(b) The Form of the Procedure: Statutory Sources
9.2(c) Practice Points
9.2(d) Applications
9.3 Private Neutral Fact-Finding
9.3(a) Structure of the Process
9.3(b) Forms
9.3(c) Applications
9.3(c)(1) Generally
9.3(c)(2) Software Disputes
9.3(c)(3) Expert Fact-Finding in Intellectual
Property Disputes
9.3(c)(4) Multi-Discipline Liability Allocation Process
9.4 A Note on Model-Building
9.5 Early Settlement: Rule 68 and "Early Offers"
9.5(a) Generally
9.5(b) Cost-Shifting Under Rule 68
9.5(b)(1) Features of Rule
9.5(b)(2) Practice Points
9.5(c) "Early Offer" Programs
9.5(c)(1) Generally
9.5(c)(2) Illustrations
9.5(c)(3) Considerations
9.5(c)(4) Conclusions
9.6 Miscellany: Neutral Listeners, Ombuds, and
Ex Parte Adjudicators
9.6(a) Neutral Listener
9.6(b) Ombuds
9.6(c) Advisory Arbitration/Ex Parte Adjudication
Chapter X Court-Annexed Procedures
10.1 Introduction
10.2 Judicial Settlement Conference
10.2(a) Generally
10.2(b) Origins and Authority
10.2(c) Options, and Pros and Cons
10.2(c)(1) The Basics, Pro and Con
10.2(c)(2) Who Should Participate
10.2(c)(3) Who Presides?
10.2(c)(4) The Ground Rules
10.2(d) Practice Points
10.2(d)(1) Prepare, Prepare, Prepare
10.2(d)(2) The Pre-Hearing Statement
10.2(d)(3) At the Conference
10.3 Early Neutral Evaluation
10.3(a) Generally
10.3(b) Conventions and Legal Considerations
10.3(c) Appointment of the Neutral
10.3(d) The ENE Position Paper
10.3(e) The ENE Session
10.3(f) Practice Points
10.3(g) Applications
10.4 Court-Appointed Neutral Experts
10.4(a) Generally
10.4(b) Structure of the Process
10.4(c) Conventions and Legal Considerations
10.4(d) Practice Points
10.4(e) Applications
10.5 Special Masters
10.5(a) Generally
10.5(b) Appointing Authority and its Limits
10.5(c) Applications
10.6 Summary Jury Trial ("SJT")
10.6(a) Generally
10.6(b) The Process in Outline
10.6(c) Pros and Cons
10.6(d) Practice Point: The Stages of the SJT
10.6(e) Presentations
10.6(f) Jury-Determined Settlement
10.6(g) Legal Considerations
10.7 Screening Panels
10.7(a) Generally
10.7(b) The Origins and the Forms
10.7(c) The Results
10.7(d) The Lawyer’s Role
10.8 Comment – The Qualifications of Court-Appointed Neutrals
Chapter XI Conflict Management
11.1 Introduction
11.2 The Pros and Cons of ADR Agreements
11.3 Techniques of Conflict Prevention
11.3(a) Generally
11.3(b) Types of Prevention
11.4 Why People Sue
11.4(a) "Claiming Behavior" and Conflict Management
11.4(b) The "Claiming Behavior" Model
11.4(b)(1) Generally
11.4(b)(2) Economic Values
11.4(b)(3) Personal Comfort
11.4(b)(4) Perceptions of Fairness and Justice
11.4(b)(5) Implications
Chapter XII ADR by Contract
12.1 Dispute Analysis for Individual Transactions
12.2 Drafting Options
12.2(a) Introduction
12.2(b) Clauses with "Scaled" Conflict Procedures
12.2(c) Existing Procedures or Drafting From Scratch
12.2(d) An Example – An ADR Clause for a
Long-Term Agreement
12.2(e) A Drafting Checklist
12.3 Enforceability of Agreements Ex Ante
12.3(a) Development of the Law
12.3(b) Terminix, Casarotto, and Mastrobuono
12.3(c) The Future – A Legislative Response?
12.3(d) Postscript: Enforceability and Third Parties
Chapter XIII Recurring Legal Issues in ADR
13.1 Introduction
13.2 Confidentiality in ADR
13.2(a) Generally
13.2(a)(1) Why Confidentiality Matters
13.2(a)(2) The Information to be Protected
13.2(b) Legal Restrictions, Policies and Rules
13.2(b)(1) Rule 408
13.2(b)(2) Rule 26: Discovery
13.2(b)(3) Rule 26: Protective Orders
13.2(c) Confidentiality Agreements
13.2(d) ADR Privilege Statutes
13.2(e) Sealed Settlements
13.2(e)(1) Generally
13.2(e)(2) Traditional Cases of Mandatory Disclosure
13.2(e)(3) Limitations on Sealed Settlements
13.3 Statutory Restrictions and Forms
13.3(a) Generally
13.3(b) Agreements to Arbitrate
13.3(c) Pre-emption of State Law by the FAA
13.3(d) Limitations in the States
13.3(d)(1) Generally
13.3(d)(2) Agreements to Arbitrate Prohibited
13.3(d)(3) Areas Specially Exempted
13.3(e) A Note on Mutuality and One-Way Clauses
13.4 Finality: Preclusion and Accords
13.4(a) Generally
13.4(b) Res Judicata
13.4(c) Collateral Estoppel
13.4(d) Executory Accord
13.4(e) Fraud in the Settlement
13.4(f) Postscript on Post-Judgement Settlement
and Vacatur
13.5 Constitutional Limitations
13.5(a) Generally
13.5(b) The Seventh Amendment and Article III
13.5(c) The Due Process and Equal Protection Arguments
13.5(d) The Situation in the States
13.6 ADR With the Government
13.6(a) Attitudes and Advice
13.6(b) The Law in the States
13.6(c) Federal Law
13.6(c)(1) Historical Overview
13.6(c)(2) Recent Federal Statutes
Chapter XIV Issues of Professional Responsibility and Jurisprudence
14.1 Introduction
14.2 Is There a Professional Duty to Practice ADR?
14.3 Lawyers as Neutrals: Conflicts with the Practice of Law?
14.3(a) Generally
14.3(b) Prior Legal Representation
14.3(c) Simultaneous Representation in Unrelated Matter
14.3(d) Subsequent Legal Representation
14.4 Private Interests and Public Functions
14.5 The "Repeat Provider"
14.6 Pressure Points: Arbitration in the Workplace
14.7 The Rules of the Judiciary and the Role of the Legislature
14.8 Conclusion
Appendix 1 Federal Arbitration Act
Appendix 2 Uniform Arbitration Act
Appendix 3 Negotiated Rulemaking Procedure
Appendix 4 Administrative Dispute Resolution Act
Appendix 5 AAA Commercial Arbitration Rules
Appendix 6 AAA Mediation Rules
Appendix 7 CPR Mediation Procedures
Appendix 8 AAA Mini-Trial Procedures
Appendix 9 CPR Rules for Nonadministered Arbitration
Appendix 10 AAA Dispute Resolution Clauses
Appendix 11 Rules of Ethics for Mediators
Appendix 12 Model Standards of Conduct for Mediators
Table of Cases
Index