Deck 5: Alternative Dispute Resolution

Question 1

Private arbitrators are not permitted to decide on questions of law.

Answer 1

False
Explanation: The issues submitted to arbitration, as framed in the submission, may be questions of fact, questions of law, or mixed questions of fact and law.

Question 2

If a party is unhappy with the way a private arbitration is going, it may unilaterally close the proceedings and move the dispute to public litigation.

Answer 2

False
Explanation: The parties authorize an arbitrator to make a decision that binds these parties and resolves their dispute. A party that thinks the process is not going well cannot withdraw from the arbitration and resort to litigation.

Question 3

Positional bargaining is an approach based on principled, interest-based negotiations.

Answer 3

False
Explanation: In positional bargaining, the parties begin in a competitive style by stating their respective expectations. For example, in a sales transaction, the seller starts with as high an asking price as is considered reasonable. Likewise, the buyer begins with the lowest reasonable price.

Question 4

Focus groups can deliver binding decisions in civil cases.

Question 5

The arbitrator should be disinterested in any financial impact of the decision.

Question 6

The arbitrator is empowered by the parties to reach a binding decision in a voluntary arbitration.

Question 7

A dispute arises when one party makes a claim that another party denies.

Question 8

Each state has its own licensing regulations for arbitrators.

Question 9

Once a lawsuit has been filed, ADR may not be used until the suit has gone to judgment or has been dismissed.

Question 10

Positional negotiation creates barriers to resolution that may be removed by using principles instead of positions.

Question 11

Litigation is the quickest method of dispute resolution.

Question 12

Juries often decide close questions of liability, as well as size of the verdict, against business organizations.

Question 13

Normally, the decision to submit a dispute to arbitration is irrevocable.

Question 14

The sole source of qualified expert arbitrators currently is the American Arbitration Association.

Question 15

An arbitrator must be a lawyer or a judge in good standing in the community where the arbitration is to take place.

Question 16

To avoid costly public litigation, parties can agree to have a private third party decide the merits of their dispute.

Question 17

Negotiation is the process used to persuade or coerce someone to do what you want them to do.

Question 18

A negotiated settlement is generally more expensive and time-consuming than litigation.

Question 19

In most state statutes authorizing voluntary arbitration, the agreement to submit to arbitration may be written or oral.

Question 20

The arbitrator chooses the issues of the hearing to be resolved.

Question 21

The judicial review of an arbitrator's award in a voluntary proceeding is quite restricted and is more limited than the appellate review of a trial court's decision.

Question 22

An arbitrator may be considered partial or corrupt by independently investigating a material matter after the close of hearings without telling either party about the investigation.

Question 23

Individual states are not limited by the Constitution when they make laws that deny arbitration of certain disputes

Question 24

The federal system and all state systems require arbitration hearings to comply with established rules of evidence.

Question 25

A mediator cannot impose a binding solution on the parties.

Question 26

_____ is the process used to persuade or coerce someone to do what you want them to do.

A) Avoidance
B) Accommodation
C) Negotiation
D) Competition
E) Collusion

Question 27

Roger Fisher, William Ury, and Bruce Patton wrote a seminal book on negotiation titled _____.

A) The Principled Proposition
B) Making It Work
C) Let's Just Talk
D) Getting to Yes
E) Letting It Go

Question 28

Rules related to court-annexed mediation are federally mandated.

Question 29

Interest-based negotiations are superior to position-based negotiation because:

A) the differences between the interests of the parties are often large.
B) interest-based negotiations allow room for consideration of non-factual concerns, such as relationships and long-term interests.
C) position-based negotiation is often only concerned with preparing for litigation.
D) interest-based negotiation requires the presence of a judge or magistrate.
E) interest-based negotiation forces the parties to discuss resolution options for the week prior to open negotiation.

Question 30

The court mandates an enforcement mechanism that ensures the parties will mediate in good faith.

Question 31

The failure of a party to be present at an arbitration hearing constitutes a waiver of the right to reject the award and seek de novo judicial review.

Question 32

A negotiation between a seller and a buyer begins with each party stating their respective expectations. The seller starts with as high an asking price as is considered reasonable. Likewise, the buyer begins with the lowest reasonable price. This is an example of:

A) positional bargaining.
B) principled negotiation.
C) interest-based negotiation.
D) fact bargaining.
E) surface bargaining.

Question 33

If an arbitrator makes a clearly erroneous ruling pursuant to a voluntary contract-based arbitration, there will be sufficient grounds for a judge to set aside the award.

Question 34

Absent fraud or other inappropriate behavior, arbitration awards in voluntary proceedings are not subject to judicial review on the merits of the decision.

Question 35

From the perspective of judicial review, voluntary arbitration is a more effective alternative to litigation than mandatory arbitration.

Question 36

In order for a federal court to assume that parties did not intend to arbitrate, a court must believe with positive assurance that the parties did not intend to include the particular dispute in the arbitration clause.

Question 37

Generally an arbitrator's award does not need to set forth findings of fact, conclusions of law, or the reasons for an award.

Question 38

The Federal Arbitration Act is largely responsible for the prominent role and positive perception of arbitration among businesses today.

Question 39

Mandatory arbitration proceedings are generally subject to a de novo judicial review if a party is dissatisfied with the award.

Question 40

Statutorily mandated arbitration requires a higher level of judicial review of an award than voluntary arbitration.

Question 41

The _____ of the U.S. Constitution is often used to set aside state laws that improperly deny arbitration of certain disputes.

A) Takings Clause
B) Bill of Rights
C) Supremacy Clause
D) Third Amendment
E) Due Process Clause

Question 42

A(n) _____ is a decision that arises when parties already in dispute decide that arbitration is better than litigation.

A) submission
B) motion to compel arbitration
C) injunction
D) arbitrability award
E) postdispute arbitration agreement

Question 43

In the absence of a statute, the rights and duties of the parties to a submission for arbitration are described and limited by:

A) the Constitution.
B) de novo review.
C) class-action certification.
D) arbitrability.
E) the agreement.

Question 44

Often, to provide a dress rehearsal for jury trials, attorneys argue their cases in front of a(n) _____ on the basis of assumed facts, presenting arguments and expected evidence to this mock jury composed of citizens.

A) arbitrator
B) barrister
C) magistrate
D) class
E) focus group

Question 45

Which of the following is true of the Federal Arbitration Act?

A) It covers any arbitration clause in a contract that involves interstate commerce.
B) It favors litigation over arbitration in cases where an arbitration clause is ambiguous.
C) It nullifies the rights of parties to litigate disputes if an arbitration clause exists.
D) It ensures that arbitration is used only in federal cases, and not in state cases.
E) It guarantees that all arbitration clauses are irrevocable under any circumstances.

Question 46

The decision by an arbitrator is called a(n):

A) submission.
B) award.
C) verdict.
D) judgment.
E) edict.

Question 47

In most cases, an arbitrator's award:

A) needs to set forth the legal reasons for the result.
B) needs to set forth the findings of fact.
C) needs to set forth the specific credentials of the arbitrator.
D) needs not set forth any specific facts, law, or reasons.
E) needs to set forth the names of the parties.

Question 48

Which of the following is true of arbitration?

A) Arbitration is more expensive and time-consuming than litigation.
B) Arbitrators' decisions are rarely binding on the parties.
C) Arbitrators must be licensed pursuant to the American Arbitration Association.
D) An arbitrator is always a neutral third party.
E) Arbitrators must be licensed and trained to assume the role.

Question 49

Which of the following is true of arbitration?

A) The record of proceedings is available to the press and others.
B) The decisions arising from arbitration are binding on the parties.
C) Arbitration cannot be imposed on the disputing parties.
D) The parties themselves resolve all the matters of contention, without the intervention of a third party.
E) The arbitrator need not be a disinterested party.

Question 50

According to Roger Fisher, William Ury, and Bruce Patton, the element of interest-based negotiation that instructs parties to brainstorm possible solutions to the dispute is referred to as:

A) options.
B) collaboration.
C) puzzle-solving.
D) preparatory positioning.
E) legitimacy.

Question 51

Which of the following distinguishes mandatory arbitration from voluntary arbitration?

A) The right of the dissatisfied party to reject the award
B) The dollar amount involved
C) Whether or not an attorney is required
D) The quality of the arbitrators
E) Whether there will be one or three arbitrators

Question 52

Which of the following is true of the use of ADR techniques?

A) ADR techniques are ineffective once the pretrial process has begun.
B) Disputing parties must begin a lawsuit to use any form of ADR.
C) Disputing parties cannot use an ADR technique not specified in the original agreement.
D) Disputing parties can agree to use an ADR technique after the dispute arises.
E) Litigation precludes the use of ADR techniques for dispute resolution.

Question 53

The act of referring a matter to arbitration is called:

A) a submission.
B) a summons.
C) appealing.
D) de novo review.
E) collective bargaining.

Question 54

According to Roger Fisher, William Ury, and Bruce Patton, _____ is the element of interest-based negotiation that involves the application of accepted standards to the topic negotiated-rather than having the parties state unsupported propositions.

A) options.
B) collaboration.
C) puzzle-solving.
D) preparatory positioning.
E) legitimacy.

Question 55

Contract-based arbitration is considered to be:

A) voluntary because both parties have willingly agreed to participate.
B) unconstitutional in most states because it limits redress of grievances.
C) coercive because it provides an unfair advantage to the party originating the contract.
D) restrictive and undesirable because of expense and time considerations.
E) legally impractical because these agreements are too difficult to reach in early contract negotiations.

Question 56

According to Roger Fisher, William Ury, and Bruce Patton, in principled negotiation, _____ are outcomes that are possible without the agreement of the other party.

A) commitments
B) alternatives
C) options
D) interests
E) relationships

Question 57

A(n) _____ will be enforced by the courts as if it were a judgment of the courts.

A) award
B) submission
C) appeal
D) pleading
E) caucus

Question 58

Who frames the issues to be resolved in arbitration?

A) The arbitrator
B) The judge
C) The parties to the dispute
D) The Supreme Court
E) The National Federation of Arbitrators

Question 59

When a losing party in an arbitration proceeding makes allegations of bias against an arbitrator, the allegations:

A) automatically nullify the panel's opinion.
B) normally do not impact the results of arbitration.
C) result in a judge overturning the opinion.
D) normally remove that arbitrator's opinion from the results of the arbitration.
E) set off a new round of litigation.

Question 60

Arbitrators are typically chosen by:

A) the U.S. Supreme Court.
B) fiat.
C) the disputing parties.
D) Federal Rules of Civil Procedure.
E) mediators.

Question 61

Which of the following is true of caucuses in dispute resolution?

A) They generally occur during a mediation proceeding.
B) They only occur when mandated by a court order.
C) A caucus involves both parties negotiating without the mediator.
D) They are illegal because they are considered ex parte communications.
E) Caucuses are synonymous with de novo reviews.

Question 62

The outcome of mediation:

A) is binding on all parties.
B) can have no impact on dispute resolution in any way.
C) is a legal finding that may be used in court if the dispute proceeds to litigation.
D) helps point out weaknesses in a case without an actual trial.
E) is a necessary precursor to arbitration.

Question 63

When parties agree to resolve all the matters of contention that they can and to arbitrate the unresolved matters, they are said to be using a variation of dispute resolution known as:

A) judicial review.
B) a focus group.
C) submission.
D) Med-Arb.
E) a caucus.

Question 64

_____ occurs when a trial judge requires the disputing parties to submit to the mediation process before a complaint can be litigated formally.

A) Restorative justice
B) Party-directed mediation
C) Precursor mediation
D) A caucus
E) Court-annexed mediation

Question 65

For mandatory arbitration to be constitutional:

A) proceedings must be bound by standard judicial tenets such as discovery.
B) licensed practitioners must preside over all proceedings.
C) all disputing parties must agree in advance to be bound by the arbitration award.
D) fair procedures must be provided by the legislature and ultimate judicial review is available.
E) the foundational statute must have passed with a super-majority.

Question 66

A party dissatisfied with the mandatory arbitration award has the right to:

A) appeal the award directly to the state supreme court.
B) appeal the award directly to the U.S. Supreme Court.
C) reject the award and seek a review in the appropriate trial court.
D) sue the arbitrator.
E) ignore the disputed award.

Question 67

Typically, mediators utilize the principles of:

A) positional bargaining.
B) fact bargaining.
C) option-based negotiation.
D) surface bargaining.
E) interest-based negotiation.

Question 68

In which of the following cases will courts most likely use judicial review to change the awards of voluntary arbitration?

A) Both parties are dissatisfied with the award.
B) The decision violates a positive mandate of the law.
C) The arbitrator reached erroneous findings of fact from the evidence.
D) One party is dissatisfied with the award.
E) The arbitrator misunderstands the law.

Question 69

De novo review means that:

A) the court appoints an arbitrator to initiate arbitration proceedings.
B) the court tries the issues anew as if no arbitration occurred.
C) the court recommends that the party opt for mediation instead of litigation.
D) the court halts a mediation process and begins litigation.
E) the court takes into account the arbitrator's award in the litigation.

Question 70

The meeting between a mediator and one disputant outside the presence of the other disputant is called a _____.

A) calumny.
B) consensus.
C) convention.
D) convocation.
E) caucus.

Question 71

The difference between a mediator and an arbitrator is that:

A) a mediator is not a neutral party.
B) an arbitrator is chosen by the disputing parties, while a mediator is not.
C) an arbitrator can force a binding solution on both parties.
D) a mediator can impose a binding solution on the parties.
E) only an arbitrator may be appointed by a judge.

Question 72

Which of the following is true of mediation?

A) Mediators tend to be more expert in the field than arbitrators so their decisions are less likely to be erroneous.
B) The disputing parties do not have control over the process, reducing preparation time.
C) Though mediation is typically more expensive than litigation and arbitration, the quality is often better.
D) A mediator cannot impose a binding solution on the parties as he is an interested party to the dispute.
E) A trial judge can require the disputing parties to submit to the mediation process before litigation.

Question 73

Which of the following is true of a caucus in the process of mediation?

A) It constitutes misconduct on the part of the arbitrator.
B) Once the mediator uses a caucus, the parties cannot meet face-to-face.
C) A caucus is only allowable if both parties are present at all times.
D) The presence of a mediator is not essential to the conduct of a caucus.
E) A caucus involves the mediator, and only one of the disputing parties.

Question 74

If arbitration is conducted pursuant to state statute:

A) the statute determines what grounds may be used to challenge an award in court.
B) if a dispute arises involving interstate commerce, the statute of the state where the dispute is first submitted prevails.
C) a disputing party may choose to have Federal Arbitration Act provisions govern any resolution of the dispute if the state statute appears unfavorable to his or her position.
D) only Congress can overturn it.
E) only the U.S. Supreme Court can overturn it.

Question 75

Courts can use judicial review to change the awards of voluntary arbitration when:

A) either disputing party is dissatisfied with the award.
B) the arbitrator made erroneous rulings during the hearing.
C) the actions of the arbitrator are deemed fraudulent or arbitrary.
D) the arbitrator reached erroneous findings of fact from the evidence.
E) an arbitrator makes a mistake of law during the proceedings.

Question 76

Mediators are similar to arbitrators in that:

A) they can impose binding decisions on the parties.
B) they must be qualified and trained to practice.
C) their decisions can be imposed in a court of law.
D) they operate in cases of federal rather than local importance.
E) they must be disinterested third parties.

Question 77

The final step of a successful mediation is:

A) submitting any conclusions to a judge for judicial approval prior to implementation.
B) writing down the basic agreement reached and having it signed by all the parties.
C) providing all evidence given during the mediation to the parties' attorneys for use in the next phase of litigation.
D) agreeing that all future disputes be resolved in the same manner.
E) turning the results over to the arbitrator as the submission for arbitration.

Question 78

Which of the following is true of arbitration procedures?

A) Arbitration is a voluntary procedure that cannot be forced on the parties.
B) Judicial review of the arbitrator's award occurs in most cases.
C) The award resulting from the voluntary arbitration procedure is final.
D) If the arbitrator made erroneous rulings during the hearings, the award can be set aside.
E) The arbitrator's award is binding on the parties only if there was no error of law on the part of the arbitrator.

Question 79

Ben and Jerry enter into a business agreement to assemble and sell prepackaged salads. In their written agreement, they both agree that they will be required to settle all disputes through arbitration. Which of the following is true of this situation?

A) This is an example of a mandatory arbitration clause.
B) This is an example of a voluntary arbitration clause.
C) This is an example of a caucus.
D) This is an example of court-annexed mediation.
E) This is an example of a postdispute arbitration agreement.

Question 80

James has been appointed as an arbitrator in a dispute. Which of the following can he do without the danger of it constituting misconduct?

A) Accepting gifts from a party to the proceedings
B) Holding hearings without a member of the arbitration panel present
C) Communication with a party to the proceedings with consent of the other party
D) Receipt of evidence as to a material fact without notice to a party
E) Conducting an independent investigation into a material matter after the close of hearings