Details
Table of Contents
Preface
Note to teachers
Acknowledgments
Chapter 1: Introduction
1-1: Overview
1-2: Disputes
1-3: Resolution of disputes
1-4: Processes of dispute resolution
1-5: Definitions of litigation and ADR
a: ADR as alternatives to litigation
b: Litigation as the default process
1-6: Introductions to major ADR processes
a: Negotiation
b: Mediation and other processes in aid of negotiation
c: Arbitration
1-7: Basic division within ADR: arbitration vs everything else
a: All ADR processes can produce binding results
1: Negotiation
2: Mediation and other processes in aid of negotiation
3: Arbitration
b: Arbitration is the only ADR process that can produce binding results without a post-dispute contract
c: Arbitration or litigation casts the shadow in which negotiation and processes in aid of it occur
d: Implications for categorizing and comparing processes
1-8: Broader perspectives on ADR
a: ADR diversity
b: Cool and warm themes; the cost and quality of dispute resolution
c: Lawyers and ADR
Chapter 2: Arbitration And Similar Processes
A: Overview
2-1: Arbitration defined
2-2: Contractual arbitration and non-contractual arbitration; constitutional right to jury trial
2-3: Arbitration law summarized
a: Post-dispute and pre-dispute agreements to arbitrate
b: Enforcement of arbitration agreements
c: Arbitration process
d: Enforcement of arbitrator's decision or "award"
B: Sources of contemporary American arbitration law
2-4: Federal law
a: Pro-contract
b: Court orders to arbitrate; specific performance of arbitration agreements
c: Broad applicability
2-5: State law
a: Arbitration law
b: Non-arbitration law
C: FAA preemption of state law
1: Evolution of case law on FAA preemption
2-6: Federal arbitration law as (non-preemptive) procedural law
2-7: Federal arbitration law as (preemptive) substantive law
2-8: FAA creates no federal jurisdiction
2: Preemption of state law impeding contract enforcement
2-9: Generally
2-10: State law prohibiting courts from enforcing arbitration agreements
2-11: State law prohibiting courts from enforcing arbitration agreements with the remedy of specific performance
2-12: State law making arbitration agreements unenforceable with respect to certain claims
2-13: State law making arbitration agreements in certain types of transactions unenforceable
2-14: State law raising the standard of assent for contract formation
3: Choice-of-law clauses
2-15: Introduction
2-16: Volt case
2-17: Mastrobuono case
4: Insurance arbitration
2-18: McCarran-Ferguson and the FAA
D: Formation of enforceable arbitration agreements
1: Separability
2-19: Prima paint case
2-20: Buckeye case
2-21: Applications of separability
2: Formation
2-22: Mutual manifestations of assent
a: Contract law's objective approach
b: Recurring fact patterns
2-23: Consideration
3: Contract law defenses to enforcement
2-24: Defenses subject to separability doctrine
2-25: Unconscionability
a: Generally
b: FAA's constraint on the scope of the unconscionability doctrine
c: Arbitration organizations' policing against unconscionability
d: Public policy and child custody
2-26: Waiver of the right to arbitrate
4: Non-contract law defenses to enforcement: federal statutory claims and public policy
2-27: Toward universal arbitrability
2-28: Current in arbitrability
a: Simple in arbitrability
1: Labor arbitration
2: Automobile dealers and military personnel
b: Arbitrability with strings attached: the effectively vindicate doctrine
E: Interpretation of arbitration agreements
1: Contractual arbitrability
2-29: Introduction
2-30: Generally decided by courts
2-31: Contractual and non-contractual approaches
2: Multi-party disputes
2-32: Claims by or against those not party to the arbitration agreement
a: Party plaintiff vs non-party defendant
b: Non-party plaintiff vs party defendant
2-33: Consolidation of, and stays pending, related proceedings
2-34: Class actions
3: Arbitration procedure
2-35: Overview
2-36: Pre-hearing
a: Selection of arbitrator(s)
1: Methods of selection
2: Arbitrator fees
3: Judicial and regulatory constraints on party selection of arbitrator(s)
b: Pleadings
c: Filing fees (and un-administered arbitration)
d: Discovery
2-37: Hearing
a: General comparison with trial
b: Role of lawyers
c: Rules of evidence
d: No hearing; dispositive motions
e: Written awards; reasoned opinions
2-38: Remedies
a: Determined by contract, within limitations
1: Generally determined by contract; the Mastrobuono case
2: Limitations on contract; the book case
b: Typical contract terms
c: Consequences of limiting remedies in arbitration
4: Governing substantive law, if any
2-39: Substantive law applied in arbitration
F: Effect of arbitration award
1: Enforcement of arbitration award
2-40: Confirmation
2-41: Claim preclusion (res judicata)
a: Generally applicable
b: Labor exception
2-42: Issue preclusion (collateral estoppel)
2: Vacatur of arbitration award
2-43: Introduction
a: Vacatur is rare
b: Statutory and non-statutory grounds
2-44: Statutory grounds
a: Corruption, fraud or undue means
b: Evident partiality or corruption
c: Fundamentally fair hearing
d: Exceeded powers
2-45: Non-statutory grounds
a: Error of law, including manifest disregard
1: Narrow ground for Vacatur
2: Recent expansion
b: Public policy
c: Grounds created by contract
2-46: Federal preemption of state law
a: State grounds for Vacatur broader than federal
b: State grounds for Vacatur narrower than federal
G: International arbitration
2-47: Introduction: public law arbitration and commercial arbitration
2-48: New York convention
a: Basic provisions
b: Effect of United States ratification
c: Significance
2-49: Practice of international commercial arbitration
H: Employment arbitration and labor arbitration
2-50: Conventional distinction between "employment" and "labor"
2-51: FAA's exclusion of certain "contracts of employment"
2-52: Employment arbitration
2-53: Labor arbitration
a: LMRA rather than FAA
b: Practice of labor arbitration
1: Two peculiarities
2: Labor law and CBAs
c: Few arbitrable claims
1: Law
2: Union, not employee, controls arbitration
3: Narrowly drafted arbitration clauses
d: Interest arbitration
I: Processes similar to arbitration
2-54: Private judging ("rent-a-judge")
2-55: Non-contractual, yet binding, arbitration
a: Introduction
b: Examples
1: Federal programs
2: Government employees-federal
3: Government employees-state and local
4: Railway Labor Act
5: State "lemon" laws
6: State auto insurance laws
7: Attorney fee disputes.
3: Negotiation
A: Negotiation contexts
3-1: Dispute negotiation and transactional negotiation
3-2: Dispute negotiation and lawyers; settlement negotiation defined
3-3: Settlement negotiation and the shadow of the law
3-4: Bilateral monopoly of settlement negotiation
B: Settlement/litigation choice
3-5: Valuing a case
a: Introduction to case valuation
b: Factors lawyers and clients should consider in valuing a case
c: Timing of the settlement/litigation choice
d: Risk aversion and diversification
1: Risk aversion
2: Diversification
e: Expected value, BATNA and the bottom line
f: Psychological barriers to valuing a case accurately
1: Availability bias
2: Anchoring bias
3: Egocentric biases
4: Overconfidence bias
g: Valuation of criminal cases
3-6: Disagreements between lawyer and client about the settlement/litigation choice
a: Generally
b: Legal fees
1: Hourly billing
2: Contingency fees
3: Retainers and other fixed-fees (especially in criminal practice)
4: Legal fees paid through liability insurance
c: Professional responsibility
C: Negotiation theory
3-7: Zero-sum and positive-sum
3-8: Zero-sum (distributive) negotiation
3-9: Positive-sum (integrative) negotiation
a: Example on the time value of money
b: Importance of multiple issues
3-10: Positive-sum (integrative) negotiation is not always worthwhile, or even possible
3-11: Bottom lines and settlement zones
a: Case valuations determine bottom lines which determine settlement zones
b: Predictions about the results of litigation
1: Predictions that usually (but not always) result in a settlement zone
2: Predictions less likely to result in a settlement zone: cases of over-optimism
c: Conclusion
3-12: Settlement zone does not ensure settlement (barriers to settlement)
a: Ignorance of settlement zone's existence or boundaries
b: Dividing the value created by settlement
3-13: Bottom lines and settlement zones in positive-sum (integrative) negotiation
D: Approaches to negotiation
3-14: Terminology
1: Adversarial/competitive approach
3-15: Opening offers
3-16: Few and small concessions
3-17: False concessions
3-18: Concession tricks and escalation tactics
3-19: Deception and information
3-20: Misinformation about bottom lines and the strength of your case
a: Generally
b: Lying about one's bottom line
c: Projecting confidence in one's case and lack of interest in settling
d: Effect of misinformation about bottom lines
3-21: Psychological warfare
a: Anger, threats, ridicule, accusation and intimidation
b: Negotiate on your own turf
c: Outnumber your counterparts
d: Negotiate when you have time and your counterpart does not
e: Lack of authority
f: Locked into position
g: Feign irrationality
h: Wolf in sheep's clothing
3-22: Drawbacks of the adversarial/competitive approach
2: Cooperative approach and the prisoner's dilemma
3-23: Cooperative approach
3-24: Prisoner's dilemma and the importance of reputation
a: Prisoner's dilemma
b: Importance of reputation and the incentive to cooperate
3-25: Tactics for a cooperative lawyer with an adversarial/competitive counterpart
3: Problem-solving approach
3-26: Overview of problem-solving
a: Positive-sum
b: Coinciding interests (with a tax law example)
c: Logrolling multiple issues
d: Tactics listed
3-27: Interests, not positions
3-28: Communicating your side's interests
3-29: Variety of solutions
3-30: Drawbacks of the problem-solving approach
4: Gender, culture, race and ethnicity
3-31: Gender
3-32: Culture, race and ethnicity
E: Preparing for negotiation
3-33: Introduction
3-34: Identifying your client's interests, bottom line and specific goals
3-35: Identifying other party's interests, bottom line and specific goals
3-36: Adjusting during negotiation
a: Adjusting approaches during negotiation
b: Adjusting your bottom line during negotiation
3-37: Specific preparations
F: Law governing settlement
3-38: Criminal and tort law; "good faith" in negotiation
3-39: Sales law
a: Legal effects of releases and settlement agreements
1: Releases
2: Settlement agreements
b: Grounds for non-enforcement
1: Duress and unconscionability
2: Misrepresentation and mistake
3: Requirement of a writing
4: Public policy
c: Entering judgment on settlement (consent decree)
d: Plea agreements
3-40: Agency law
3-41: Multiple parties: indemnity, contribution and Mary Carter agreements
3-42: Confidentiality
a: Generally
b: Confidentiality agreements prior to or during litigation
c: Rules of evidence and discovery
d: Confidentiality clauses in settlement agreements
G: Settlement/litigation choice: broader perspectives
3-43: Normative views on the prevalence of settlement
3-44: Resources
3-45: Dispute resolution vs public justice.
4: Mediation And Other Processes In Aid Of Negotiation
A: Overview
4-1: Mediation's popularity
4-2: Mediation defined
4-3: Dispute mediation and transactional mediation
4-4: Mandatory mediation and voluntary mediation
B: Goals of dispute mediation
4-5: Generally
4-6: Settle cases
4-7: Positive-sum or problem-solving
4-8: Moral growth
C: Mediation process
4-9: Goals shape process
4-10: Mediation process generally
a: Participants
b: Starting to mediate
c: Joint sessions, private caucuses and shuttle diplomacy
d: Facilitating communication
1: Direct communication
2: Indirect communication
e: Settlement offers
f: Agreements
4-11: Identifying settlement zones and overcoming barriers to settlement
4-12: Positive-sum
a: In general
b: Coinciding interests
c: Logrolling multiple issues
d: Trusted intermediary combining information
4-13: Evaluation by the mediator
a: Appeal of evaluation
b: Concerns about evaluation
1: Interests vs rights
2: Is "evaluative mediation" an oxymoron?
3: Mediator's credibility
c: Mediator's evaluation given to the court
4-14: Broad or narrow scope of issues
4-15: Party self-determination and mediator impartiality
4-16: Mediated settlement agreement
a: Practice, including the single-text approach
b: Enforceability
D: Mediation contexts
4-17: Family
4-18: Labor and employment
4-19: Community
4-20: Business
4-21: Public law (including environmental)
4-22: Any civil case
4-23: Criminal cases
E: Representing clients in mediation
4-24: Whether to mediate
4-25: Preparing for mediation
4-26: During mediation
F: Law governing mediation
4-27: Mediators' professional duties
a: Overview
b: Liability suits against mediators
c: Occupational licensing: who may mediate?
1: Mandatory vs voluntary
2: Lawyer-mediators
3: Non-lawyer mediators
d: Private duties (including ethical standards)
4-28: Confidentiality
a: Generally
b: Confidentiality agreements prior to or during litigation
c: Rules of evidence and discovery
d: Mediation privilege
e: Confidentiality clauses in settlement agreements
4-29: Agreements to mediate
4-30: Mandatory mediation
a: Generally
b: Policy arguments for and against
c: Who must participate?
d: Good faith
e: Additional pressures to settle
f: Settlement conference as mediation
G: Other processes in aid of negotiation
4-31: Introduction to other processes
a: Various processes providing non-binding adjudication or evaluation
b: Defining terms
1: Non-binding adjudication
2: Evaluation
4-32: Non-binding arbitration
4-33: Neutral evaluation
4-34: Mini-trial
4-35: Summary jury trial
4-36: Arguments for and against making these processes mandatory
a: Appeal of mandatory non-binding adjudication and evaluation
b: Concerns about mandating non-binding adjudication and evaluation
Appendix A: Federal Arbitration Act
Appendix B: New York Convention
Table of cases
Index.
Note to teachers
Acknowledgments
Chapter 1: Introduction
1-1: Overview
1-2: Disputes
1-3: Resolution of disputes
1-4: Processes of dispute resolution
1-5: Definitions of litigation and ADR
a: ADR as alternatives to litigation
b: Litigation as the default process
1-6: Introductions to major ADR processes
a: Negotiation
b: Mediation and other processes in aid of negotiation
c: Arbitration
1-7: Basic division within ADR: arbitration vs everything else
a: All ADR processes can produce binding results
1: Negotiation
2: Mediation and other processes in aid of negotiation
3: Arbitration
b: Arbitration is the only ADR process that can produce binding results without a post-dispute contract
c: Arbitration or litigation casts the shadow in which negotiation and processes in aid of it occur
d: Implications for categorizing and comparing processes
1-8: Broader perspectives on ADR
a: ADR diversity
b: Cool and warm themes; the cost and quality of dispute resolution
c: Lawyers and ADR
Chapter 2: Arbitration And Similar Processes
A: Overview
2-1: Arbitration defined
2-2: Contractual arbitration and non-contractual arbitration; constitutional right to jury trial
2-3: Arbitration law summarized
a: Post-dispute and pre-dispute agreements to arbitrate
b: Enforcement of arbitration agreements
c: Arbitration process
d: Enforcement of arbitrator's decision or "award"
B: Sources of contemporary American arbitration law
2-4: Federal law
a: Pro-contract
b: Court orders to arbitrate; specific performance of arbitration agreements
c: Broad applicability
2-5: State law
a: Arbitration law
b: Non-arbitration law
C: FAA preemption of state law
1: Evolution of case law on FAA preemption
2-6: Federal arbitration law as (non-preemptive) procedural law
2-7: Federal arbitration law as (preemptive) substantive law
2-8: FAA creates no federal jurisdiction
2: Preemption of state law impeding contract enforcement
2-9: Generally
2-10: State law prohibiting courts from enforcing arbitration agreements
2-11: State law prohibiting courts from enforcing arbitration agreements with the remedy of specific performance
2-12: State law making arbitration agreements unenforceable with respect to certain claims
2-13: State law making arbitration agreements in certain types of transactions unenforceable
2-14: State law raising the standard of assent for contract formation
3: Choice-of-law clauses
2-15: Introduction
2-16: Volt case
2-17: Mastrobuono case
4: Insurance arbitration
2-18: McCarran-Ferguson and the FAA
D: Formation of enforceable arbitration agreements
1: Separability
2-19: Prima paint case
2-20: Buckeye case
2-21: Applications of separability
2: Formation
2-22: Mutual manifestations of assent
a: Contract law's objective approach
b: Recurring fact patterns
2-23: Consideration
3: Contract law defenses to enforcement
2-24: Defenses subject to separability doctrine
2-25: Unconscionability
a: Generally
b: FAA's constraint on the scope of the unconscionability doctrine
c: Arbitration organizations' policing against unconscionability
d: Public policy and child custody
2-26: Waiver of the right to arbitrate
4: Non-contract law defenses to enforcement: federal statutory claims and public policy
2-27: Toward universal arbitrability
2-28: Current in arbitrability
a: Simple in arbitrability
1: Labor arbitration
2: Automobile dealers and military personnel
b: Arbitrability with strings attached: the effectively vindicate doctrine
E: Interpretation of arbitration agreements
1: Contractual arbitrability
2-29: Introduction
2-30: Generally decided by courts
2-31: Contractual and non-contractual approaches
2: Multi-party disputes
2-32: Claims by or against those not party to the arbitration agreement
a: Party plaintiff vs non-party defendant
b: Non-party plaintiff vs party defendant
2-33: Consolidation of, and stays pending, related proceedings
2-34: Class actions
3: Arbitration procedure
2-35: Overview
2-36: Pre-hearing
a: Selection of arbitrator(s)
1: Methods of selection
2: Arbitrator fees
3: Judicial and regulatory constraints on party selection of arbitrator(s)
b: Pleadings
c: Filing fees (and un-administered arbitration)
d: Discovery
2-37: Hearing
a: General comparison with trial
b: Role of lawyers
c: Rules of evidence
d: No hearing; dispositive motions
e: Written awards; reasoned opinions
2-38: Remedies
a: Determined by contract, within limitations
1: Generally determined by contract; the Mastrobuono case
2: Limitations on contract; the book case
b: Typical contract terms
c: Consequences of limiting remedies in arbitration
4: Governing substantive law, if any
2-39: Substantive law applied in arbitration
F: Effect of arbitration award
1: Enforcement of arbitration award
2-40: Confirmation
2-41: Claim preclusion (res judicata)
a: Generally applicable
b: Labor exception
2-42: Issue preclusion (collateral estoppel)
2: Vacatur of arbitration award
2-43: Introduction
a: Vacatur is rare
b: Statutory and non-statutory grounds
2-44: Statutory grounds
a: Corruption, fraud or undue means
b: Evident partiality or corruption
c: Fundamentally fair hearing
d: Exceeded powers
2-45: Non-statutory grounds
a: Error of law, including manifest disregard
1: Narrow ground for Vacatur
2: Recent expansion
b: Public policy
c: Grounds created by contract
2-46: Federal preemption of state law
a: State grounds for Vacatur broader than federal
b: State grounds for Vacatur narrower than federal
G: International arbitration
2-47: Introduction: public law arbitration and commercial arbitration
2-48: New York convention
a: Basic provisions
b: Effect of United States ratification
c: Significance
2-49: Practice of international commercial arbitration
H: Employment arbitration and labor arbitration
2-50: Conventional distinction between "employment" and "labor"
2-51: FAA's exclusion of certain "contracts of employment"
2-52: Employment arbitration
2-53: Labor arbitration
a: LMRA rather than FAA
b: Practice of labor arbitration
1: Two peculiarities
2: Labor law and CBAs
c: Few arbitrable claims
1: Law
2: Union, not employee, controls arbitration
3: Narrowly drafted arbitration clauses
d: Interest arbitration
I: Processes similar to arbitration
2-54: Private judging ("rent-a-judge")
2-55: Non-contractual, yet binding, arbitration
a: Introduction
b: Examples
1: Federal programs
2: Government employees-federal
3: Government employees-state and local
4: Railway Labor Act
5: State "lemon" laws
6: State auto insurance laws
7: Attorney fee disputes.
3: Negotiation
A: Negotiation contexts
3-1: Dispute negotiation and transactional negotiation
3-2: Dispute negotiation and lawyers; settlement negotiation defined
3-3: Settlement negotiation and the shadow of the law
3-4: Bilateral monopoly of settlement negotiation
B: Settlement/litigation choice
3-5: Valuing a case
a: Introduction to case valuation
b: Factors lawyers and clients should consider in valuing a case
c: Timing of the settlement/litigation choice
d: Risk aversion and diversification
1: Risk aversion
2: Diversification
e: Expected value, BATNA and the bottom line
f: Psychological barriers to valuing a case accurately
1: Availability bias
2: Anchoring bias
3: Egocentric biases
4: Overconfidence bias
g: Valuation of criminal cases
3-6: Disagreements between lawyer and client about the settlement/litigation choice
a: Generally
b: Legal fees
1: Hourly billing
2: Contingency fees
3: Retainers and other fixed-fees (especially in criminal practice)
4: Legal fees paid through liability insurance
c: Professional responsibility
C: Negotiation theory
3-7: Zero-sum and positive-sum
3-8: Zero-sum (distributive) negotiation
3-9: Positive-sum (integrative) negotiation
a: Example on the time value of money
b: Importance of multiple issues
3-10: Positive-sum (integrative) negotiation is not always worthwhile, or even possible
3-11: Bottom lines and settlement zones
a: Case valuations determine bottom lines which determine settlement zones
b: Predictions about the results of litigation
1: Predictions that usually (but not always) result in a settlement zone
2: Predictions less likely to result in a settlement zone: cases of over-optimism
c: Conclusion
3-12: Settlement zone does not ensure settlement (barriers to settlement)
a: Ignorance of settlement zone's existence or boundaries
b: Dividing the value created by settlement
3-13: Bottom lines and settlement zones in positive-sum (integrative) negotiation
D: Approaches to negotiation
3-14: Terminology
1: Adversarial/competitive approach
3-15: Opening offers
3-16: Few and small concessions
3-17: False concessions
3-18: Concession tricks and escalation tactics
3-19: Deception and information
3-20: Misinformation about bottom lines and the strength of your case
a: Generally
b: Lying about one's bottom line
c: Projecting confidence in one's case and lack of interest in settling
d: Effect of misinformation about bottom lines
3-21: Psychological warfare
a: Anger, threats, ridicule, accusation and intimidation
b: Negotiate on your own turf
c: Outnumber your counterparts
d: Negotiate when you have time and your counterpart does not
e: Lack of authority
f: Locked into position
g: Feign irrationality
h: Wolf in sheep's clothing
3-22: Drawbacks of the adversarial/competitive approach
2: Cooperative approach and the prisoner's dilemma
3-23: Cooperative approach
3-24: Prisoner's dilemma and the importance of reputation
a: Prisoner's dilemma
b: Importance of reputation and the incentive to cooperate
3-25: Tactics for a cooperative lawyer with an adversarial/competitive counterpart
3: Problem-solving approach
3-26: Overview of problem-solving
a: Positive-sum
b: Coinciding interests (with a tax law example)
c: Logrolling multiple issues
d: Tactics listed
3-27: Interests, not positions
3-28: Communicating your side's interests
3-29: Variety of solutions
3-30: Drawbacks of the problem-solving approach
4: Gender, culture, race and ethnicity
3-31: Gender
3-32: Culture, race and ethnicity
E: Preparing for negotiation
3-33: Introduction
3-34: Identifying your client's interests, bottom line and specific goals
3-35: Identifying other party's interests, bottom line and specific goals
3-36: Adjusting during negotiation
a: Adjusting approaches during negotiation
b: Adjusting your bottom line during negotiation
3-37: Specific preparations
F: Law governing settlement
3-38: Criminal and tort law; "good faith" in negotiation
3-39: Sales law
a: Legal effects of releases and settlement agreements
1: Releases
2: Settlement agreements
b: Grounds for non-enforcement
1: Duress and unconscionability
2: Misrepresentation and mistake
3: Requirement of a writing
4: Public policy
c: Entering judgment on settlement (consent decree)
d: Plea agreements
3-40: Agency law
3-41: Multiple parties: indemnity, contribution and Mary Carter agreements
3-42: Confidentiality
a: Generally
b: Confidentiality agreements prior to or during litigation
c: Rules of evidence and discovery
d: Confidentiality clauses in settlement agreements
G: Settlement/litigation choice: broader perspectives
3-43: Normative views on the prevalence of settlement
3-44: Resources
3-45: Dispute resolution vs public justice.
4: Mediation And Other Processes In Aid Of Negotiation
A: Overview
4-1: Mediation's popularity
4-2: Mediation defined
4-3: Dispute mediation and transactional mediation
4-4: Mandatory mediation and voluntary mediation
B: Goals of dispute mediation
4-5: Generally
4-6: Settle cases
4-7: Positive-sum or problem-solving
4-8: Moral growth
C: Mediation process
4-9: Goals shape process
4-10: Mediation process generally
a: Participants
b: Starting to mediate
c: Joint sessions, private caucuses and shuttle diplomacy
d: Facilitating communication
1: Direct communication
2: Indirect communication
e: Settlement offers
f: Agreements
4-11: Identifying settlement zones and overcoming barriers to settlement
4-12: Positive-sum
a: In general
b: Coinciding interests
c: Logrolling multiple issues
d: Trusted intermediary combining information
4-13: Evaluation by the mediator
a: Appeal of evaluation
b: Concerns about evaluation
1: Interests vs rights
2: Is "evaluative mediation" an oxymoron?
3: Mediator's credibility
c: Mediator's evaluation given to the court
4-14: Broad or narrow scope of issues
4-15: Party self-determination and mediator impartiality
4-16: Mediated settlement agreement
a: Practice, including the single-text approach
b: Enforceability
D: Mediation contexts
4-17: Family
4-18: Labor and employment
4-19: Community
4-20: Business
4-21: Public law (including environmental)
4-22: Any civil case
4-23: Criminal cases
E: Representing clients in mediation
4-24: Whether to mediate
4-25: Preparing for mediation
4-26: During mediation
F: Law governing mediation
4-27: Mediators' professional duties
a: Overview
b: Liability suits against mediators
c: Occupational licensing: who may mediate?
1: Mandatory vs voluntary
2: Lawyer-mediators
3: Non-lawyer mediators
d: Private duties (including ethical standards)
4-28: Confidentiality
a: Generally
b: Confidentiality agreements prior to or during litigation
c: Rules of evidence and discovery
d: Mediation privilege
e: Confidentiality clauses in settlement agreements
4-29: Agreements to mediate
4-30: Mandatory mediation
a: Generally
b: Policy arguments for and against
c: Who must participate?
d: Good faith
e: Additional pressures to settle
f: Settlement conference as mediation
G: Other processes in aid of negotiation
4-31: Introduction to other processes
a: Various processes providing non-binding adjudication or evaluation
b: Defining terms
1: Non-binding adjudication
2: Evaluation
4-32: Non-binding arbitration
4-33: Neutral evaluation
4-34: Mini-trial
4-35: Summary jury trial
4-36: Arguments for and against making these processes mandatory
a: Appeal of mandatory non-binding adjudication and evaluation
b: Concerns about mandating non-binding adjudication and evaluation
Appendix A: Federal Arbitration Act
Appendix B: New York Convention
Table of cases
Index.