Table of Cases xiii
Preface xiv
Acknowledgments xix
Introduction: The ADR Movement xxii
Part 1 An Overview of ADR 2
Introduction 3
1 The Methods of Dispute Resolution 4
Unilateral Action in Dispute Resolution 6
Bilateral Action in Dispute Resolution 11
Third-Party Evaluation as a Prelude to Dispute Resolution 12
Third-Party Assistance in Dispute Resolution 12
Third-Party Adjudication in Dispute Resolution 15
Comparing Dispute Resolution Processes 24
2 The Participants 28
The Party or Parties 29
The Attorney 31
The Paralegal 33
The Neutral Third Party 36
The Jury 37
Part 2 Unilateral Action in Dispute Resolution 44
Introduction 45
3 Inaction 46
Inaction as a Dispute Resolution Process 47
The Advantages and Disadvantages of Inaction as a Dispute Resolution Process 49
4 Acquiescence 54
Acquiescence as a Dispute Resolution Process 55
The Advantages and Disadvantages of Acquiescence as a Dispute Resolution Process 56
5 Self-Help 62
Self-Help as a Dispute Resolution Process 63
The Advantages and Disadvantages of Self-Help as a Dispute Resolution Process 73
Part 3 Bilateral Action in Dispute Resolution 80
Introduction 81
6 Negotiation 82
Preparing for Negotiation 83
Selecting a Negotiating Strategy 91
Executing the Negotiation Strategy: When, Where, and How 96
Enforcing a Negotiated Agreement 101
Negotiating in Bad Faith 102
The Advantages and Disadvantages of Negotiation as a Dispute Resolution Process 106
Part 4 Third-Party Evaluation as a Prelude to Dispute Resolution 118
Introduction 119
7 Early Neutral Evaluation 120
The Early Neutral Evaluation Process 121
The Advantages and Disadvantages of Early Neutral Evaluation as a Dispute Resolution Process 122
8 Summary Jury Trial 126
The Summary Jury Trial Process 127
The Advantages and Disadvantages of Summary Jury Trial as a Dispute Resolution Process 128
Part 5 Third-Party Assistance in Dispute Resolution 132
Introduction 133
9 Ombuds 134
The Ombuds (Ombudsman) 135
The Ombuds Process 139
Ethical and Legal Issues 139
The Advantages and Disadvantages of Ombuds as a Dispute Resolution Process 142
10 Private Mediation 146
What Should a Party Expect at the Mediation 147
Preparing for Private Mediation 147
The Mediation Process 152
Enforceability of the Mediated Agreement 154
Ethical and Legal Issues 158
The Advantages and Disadvantages of Private Mediation as a Dispute Resolution Process 173
11 Court-Sponsored Mediation 180
Court-Sponsored Mediation in the Federal Courts 181
Court-Sponsored Mediation in the State Courts 183
Preparing for Court-Sponsored Mediation 184
The Litigation/Mediation Process 185
Enforceability of the Mediated Agreement 197
Legal and Ethical Issues 202
The Advantages and Disadvantages of Court-Sponsored Mediation 206
12 Mini-Trial 214
The Mini-Trial Process 215
Selecting the Mini-Trial as an Appropriate Dispute Resolution Process 216
The Advantages and Disadvantages of the Mini-Trial as a Dispute Resolution Process 216
Part 6 Third-Party Adjudication in Dispute Resolution 220
Introduction 221
13 Private Arbitration 222
Private Arbitration as a Dispute Resolution Process 223
The Private Arbitration Process 229
Final Offer, Last Offer, or Baseball Arbitration 235
High/Low or Bounded Arbitration 236
Ethical and Legal Issues 236
The Advantages and Disadvantages of Private Arbitration as a Dispute Resolution Process 263
14 Court-Annexed Arbitration 270
The Court-Appointed List of Arbitrators 273
The Court-Annexed Arbitration Program 273
Comparing Court-Annexed Arbitration Programs 276
Preparing for Court-Annexed Arbitration 278
The Advantages and Disadvantages of Court-Annexed Arbitration as a Dispute Resolution Process 278
15 Mediation-Arbitration 284
The Mediation-Arbitration (Med-Arb) Process 285
The Advantages and Disadvantages of Mediation-Arbitration as a Dispute Resolution Process 285
16 Litigation 290
The Litigation Process 291
The Advantages and Disadvantages of Litigation as a Dispute Resolution Process 316
17 Private Judging 320
Private Judging as a Matter of Contract 321
Private Judging as Authorized by Law 322
The Social Implications of Private Judging 324
Part 7 Selecting a Dispute Resolution Strategy 330
Introduction 331
18 Selecting a Dispute Resolution Process before the Dispute Arises 332
Predispute Arbitration Provision 333
Predispute Mediation Provision 342
The Subtle Impact of Nondispute Resolution Provisions on the Selection of a Dispute Resolution Process 342
19 Selecting a Dispute Resolution Strategy after the Dispute Arises 356
Creating a Strategy for Resolving the Dispute 357
Initiating the Dispute Resolution Plan 372
Appendix A The Ombudsman Association--Code of Ethics, Standards of Practice, Glossary 381
Appendix B Uniform Mediation Act 383
Appendix C Mediation Alternatives to Judicial Action--Florida Statutes title V, chapter 44 387
Appendix D Federal Arbitration Act, USC title 9 390
Appendix E Uniform Arbitration Act 394
Appendix F Excerpt from the American Arbitration Association's Commercial Dispute Resolution Procedures (Arbitration Rules) 402
Appendix G Rules of the United States District Court for the Middle District of Florida--Court-Annexed Arbitration 410
Appendix H Local Rules of the United States District Court for the Northern District of California--ADR Local Rule 4--Non-Binding Arbitration 414
Appendix I Hawaii Arbitration Rules 419
Appendix J Private Judging--California Constitution, Statute, and Court Rule 427
Glossary 431
Index 437