Deck 5: Alternative Dispute Resolution

Question 1

Arbitration enables the disputing parties to avoid the formalities of a courtroom.

Answer 1

True
Explanation: Arbitration not only helps the disputing parties avoid the expense of litigation but also provides a means of avoiding the formalities of the courtroom. Formal pleadings, for example, and other procedural steps such as discovery and the rules of evidence are usually not used in an arbitration hearing.

Question 2

The disputing parties in arbitration can choose an arbitrator only from a list of qualified arbitrators provided by the arbitration service regardless of any agreement made prior to the selection of arbitrators.

Answer 2

False
Explanation: An arbitrator often is chosen from a list of qualified arbitrators provided by the arbitration service. The disputing parties are not limited to the list unless they have agreed to make their selection from this list.

Question 3

Generally,an agreement to submit an issue to arbitration is irrevocable.

Answer 3

True
Explanation: Generally, an agreement to submit an issue to arbitration is irrevocable, and a party that thinks the process is not going well cannot withdraw from the arbitration and resort to litigation. The parties authorize an arbitrator to make a decision that binds these parties and resolves their dispute.

Question 4

After a hearing is conducted by an arbitrator or arbitrators,the submission to arbitration occurs.

Question 5

The fact that the losing party in a lawsuit usually also has to pay court costs is an added incentive to settlement without litigation.

Question 6

When negotiating,the chances of a negotiated settlement through positional bargaining are high because positional bargaining focuses on the underlying conflicts.

Question 7

The issues submitted to arbitration in any state cannot include questions of law.

Question 8

Concentrating on the seven elements of interest-based negotiation proposed by Roger Fisher,William Ury,and Bruce Patton can help remove some of the barriers created by positional negotiation.

Question 9

Focus groups give attorneys insight into possible jury reaction to evidence and point up weaknesses in a case.

Question 10

It is mandatory to have a panel of three arbitrators to decide on any dispute case.

Question 11

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

Question 12

In the context of negotiating styles,collaborating is the hardest to demonstrate even though it is a common response in a negotiation.

Question 13

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

Question 14

Most businesses use litigation as the primary means to resolve disputes.

Question 15

A primary function of arbitration is to serve as a prelude to litigation.

Question 16

Litigation precludes the use of alternative dispute resolution techniques.

Question 17

Most state statutes authorizing voluntary arbitration accept an agreement to arbitrate even if it is oral in form.

Question 18

To avoid the various expenses of litigation,disputing parties can agree to have a third party decide the merits of their dispute.

Question 19

A party involved in arbitration can withdraw from the arbitration process and resort to litigation if the members of that party think the process is not going well.

Question 20

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

Question 21

An arbitrator's erroneous view of the law,no matter how egregious,is always binding because the disputing parties have agreed to accept their arbitrator's view of the law.

Question 22

A court assumes arbitration was intended unless it can say with positive assurance that the arbitration clause was not intended to include the particular dispute.

Question 23

Rules related to court-annexed mediation are federally mandated.

Question 24

A negotiation between a seller and a buyer begins with each party stating their respective expectations in a competitive style.The seller starts with as high an asking price as is considered reasonable.Likewise,the buyer begins with the lowest reasonable price.In the context of negotiation methods,this scenario is an example of _____.

A) positional bargaining
B) principled negotiation
C) distributive negotiation
D) fact bargaining
E) surface bargaining

Question 25

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

Question 26

A mediator cannot impose a binding solution on the disputing parties.

Question 27

Rita files a case against her husband involving the custody of their child.This is an example of a case that is subject to court-annexed mediation.

Question 28

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

Question 29

If an arbitrator undertakes an independent investigation into a material matter after the close of hearings without notice to the disputing parties,such an action constitutes misconduct on the part of the arbitrator.

Question 30

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

Question 31

Courts throughout the United States have uniformly upheld mandatory arbitration statutory schemes as against the constitutional challenges where a dissatisfied party can reject an arbitrator's award and seek a de novo judicial review of that award.

Question 32

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

Question 33

Which of the following statements is true of conflicts??A.They are always negative in nature.?B.They are present only in unproductive relationships.?C.They lead to disputes when coupled with claims that are rejected.?D.They cease to exist when there are two or more points of view.?E.They promote a secure environment if left undiscussed.

Question 34

The federal system and all state systems require arbitration hearings to be conducted according to the established rules of evidence.

Question 35

Each state has its own licensing regulations for arbitrators.

Question 36

Judicial review of voluntary/contract-based arbitration requires a de novo review of the interpretation and application of the law by the arbitrators.

Question 37

The important role and positive perception of arbitration among businesses today probably would not exist without the Federal Arbitration Act.

Question 38

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

Question 39

Which of the following statements is true of principled,interest-based negotiations?

A) They typically begin in a competitive style with the disputing parties stating their respective expectations.
B) They involve seven elements that vary in importance depending on the factual situation in dispute and on the parties' individual perspectives.
C) They are concerned only with preparing for litigation to settle disputes.
D) They require the presence of a judge or magistrate to come up with a reasonable outcome that is better than the disputing parties' alternatives.
E) They force parties to choose alternatives, which are outcomes that are agreeable to everyone involved.

Question 40

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

Question 41

In the context of alternative dispute resolution systems,_____ deliberate and make findings that give attorneys insight into possible jury reaction to the evidence in a case.

A) resolution groups
B) barristers
C) magistrates
D) control groups
E) focus groups

Question 42

_____ has been described as a better approach to negotiating among disputing parties in the book Getting to Yes by Roger Fisher,William Ury,and Bruce Patton.?A.Positional,competition-based bargaining?B.Fact-based bargaining?C.Distributive negotiation?D.Principled,interest-based negotiation?E.Surface negotiation

Question 43

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

A) accommodation
B) collaboration
C) avoidance
D) competition
E) legitimacy

Question 44

The decision handed down by an arbitrator in a hearing is called a(n)_____.

A) submission
B) award
C) verdict
D) judgment
E) summon

Question 45

The effect of the Federal Arbitration Act on state laws is that state laws __________.?A.see arbitration as a necessary prelude to litigation?B.always favor conciliation over arbitration?C.never consider an arbitrator's award as legally binding and enforceable?D.strictly nullify the right of the Equal Employment Opportunity Commission to litigate if an employee signed an arbitration clause?E.cannot prevent arbitration of disputes if the disputing parties are engaged in interstate commerce

Question 46

_____ is the technique used in collective-bargaining contracts to settle grievances of employees against their employers.

A) Facilitation
B) Litigation
C) Conciliation
D) Mediation
E) Arbitration

Question 47

Which of the following statements is true of arbitrators?

A) Arbitrators generally are chosen by the Supreme Court.
B) Arbitrators' decisions are rarely binding on the disputing parties.
C) Arbitrators must satisfy the licensing requirements of the American Arbitration Association.
D) Arbitrators should be disinterested in the financial effect of a decision.
E) Arbitrators are rarely approached by the disputing parties to resolve the parties' differences.

Question 48

Milkmen Corp.,a dairy product manufacturer,faces issues on various fronts like accounting discrepancies,use of preservatives,and retailer relations.Which of the following processes is Milkmen Corp.most likely to choose if it intends to settle the issues using a relatively quick and inexpensive resolution system??A.Trial?B.Arbitration?C.Judicial review?D.Indictment?E.Litigation

Question 49

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

A) the Constitution
B) the legislature
C) the litigator
D) the arbitrator's decision
E) the parties' agreement

Question 50

_____ frame the issues to be resolved and define the scope of an arbitrator's powers.

A) Municipal court judges
B) District court judges
C) The disputing parties
D) Mediators
E) Focus groups

Question 51

Arbitrators generally are chosen by _____.

A) the Supreme Court
B) litigators
C) the disputing parties
D) focus group
E) mediators

Question 52

In the context of alternative dispute resolution systems,the act of referring a matter to arbitration is called _____.

A) submission
B) informal review
C) concession
D) de novo review
E) conciliation

Question 53

_____,one of the seven elements of principled,interest-based negotiations,involve the negotiating parties brainstorming possible solutions to their dispute.?A.Options?B.Interests?C.Relationships?D.Positions?E.Commitments

Question 54

Which of the following statements is true of an award??A.It is not subject to judicial review on the merits of a decision.?B.It becomes final and enforceable as soon as it is made by an arbitrator.?C.It needs to set forth findings of fact,conclusions of law,or the reasons for the award.?D.It is the final set of findings presented by a focus group to an arbitrator.?E.It is mostly delivered orally by an arbitrator to the disputing parties and need not be in writing in most states.

Question 55

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

A) automatically nullify a panel's opinion
B) normally do not affect 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) normally set off a new round of litigation

Question 56

The _____ of the U.S.Constitution are often used to set aside state laws that deny arbitration of a certain dispute.

A) Takings Clause and the Establishment Clause
B) Bill of Rights and the Twelfth Amendment
C) Commerce Clause and the Supremacy Clause
D) Third and the Fourth Amendments
E) Due Process Clause and the Takings Clause

Question 57

An arbitrator's award must __________.

A) be desirable to both the disputing parties to be legally binding and enforceable
B) set forth the findings of fact under any circumstance
C) set forth the specific credentials of the arbitrator
D) give a disclosure of findings and the reasons if an arbitration agreement so requires
E) define the scope of the arbitrator's powers

Question 58

Which of the following statements is true of focus groups??A.They are employed by two disputing parties to decide on feasible solutions.?B.They are used by attorneys,and they point out weaknesses in a particular case.?C.They are a group of experts from the field of law who provide insights into a case.?D.They are primarily employed to determine the facts of a particular case.?E.They are precluded during the pretrial process when a particular case is subject to litigation.

Question 59

_____,one of the seven elements of principled,interest-based negotiations,are outcomes that are possible without the agreement of the other party in a negotiation.

A) Commitments
B) Alternatives
C) Options
D) Interests
E) Relationships

Question 60

According to Roger Fisher,William Ury,and Bruce Patton,any successful negotiation must conclude with the disputing parties making realistic _____.?A.commitments?B.aberrations?C.deviations?D.communications?E.assumptions

Question 61

Judicial review of the awards of voluntary arbitration can correct __________.

A) the outcome when both the disputing parties are dissatisfied with it
B) the erroneous rulings made by an arbitrator during the hearing
C) fraudulent or arbitrary actions by an arbitrator
D) erroneous findings of facts from the evidence by an arbitrator
E) the outcome even if one of the disputing parties is dissatisfied with it

Question 62

Which of the following is one of the primary reasons for the increase in the number of mediations?

A) The disputing parties in the mediation process retain control over when to settle.
B) Outcomes of mediations are legally binding.
C) The mediators in the mediation process are selected by the Supreme Court.
D) Lawyers play a more active role in the mediation process when compared to arbitration.
E) The mediation process involves a mediator and only one of the disputing parties.

Question 63

Unlike mandatory arbitration,voluntary arbitration is __________.

A) based on parties' agreement after dispute arises or on contract clause before dispute arises
B) unconstitutional in most states
C) coercive because it provides an unfair advantage to the party creating the contract
D) time consuming and expensive when compared to litigation
E) impractical because agreements are too difficult to reach in early contract negotiations

Question 64

A _____ in mediation occurs when a mediator meets privately with one party without the other party.

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

Question 65

The final step to a successful mediation is __________.

A) submitting any conclusions to a judge for judicial approval prior to implementation
B) the writing and signing of the agreement by the disputing parties
C) providing all evidence obtained during the mediation to the parties' attorneys for use in the next phase of litigation
D) submitting the signed agreements to focus groups for approval
E) turning the results over to an arbitrator as a submission for arbitration

Question 66

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

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

Question 67

Unlike an arbitrator,a mediator __________.

A) is not a neutral party
B) can only be appointed by the Supreme Court
C) cannot impose a binding solution on the disputing parties
D) can impose a binding solution only on any one of the disputing parties
E) cannot be chosen by the disputing parties

Question 68

When the disputing parties agree to resolve all matters of contention that they can and agree to arbitrate the unresolved matters,they are said to be using an alternative dispute resolution technique known as _____.

A) judicial review
B) judicial activism
C) submission
D) Med-Arb
E) a caucus

Question 69

Mediators are similar to arbitrators in that __________.

A) they can impose binding decisions on the disputing parties
B) they must be qualified and trained to practice dispute resolution methods
C) their cases are always assigned by the Supreme Court
D) they operate in federally important cases rather than local cases
E) they must be disinterested third parties

Question 70

Courts throughout the United States have uniformly upheld mandatory arbitration statutory schemes as against the constitutional challenges where a dissatisfied party can __________.

A) appeal against an award directly to the state Supreme Court
B) appeal against an award directly to the U.S. Supreme Court
C) reject an award and seek a review in the appropriate trial court
D) sue the arbitrator involved in the procedure
E) ignore the disputed award as it is not legally binding

Question 71

Which of the following statements is true of mediation?

A) Mediation uses mediators who tend to be more experienced in the field than arbitrators; their decisions are less likely to be erroneous.
B) The disputing parties do not have control over the mediation process, reducing preparation time.
C) Mediation is typically more expensive than litigation and arbitration.
D) The outcome of a mediation process is legally binding on the disputing parties and is enforceable.
E) A trial judge can require the disputing parties to submit to the mediation process before a complaint can be litigated formally.

Question 72

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

A) Submission
B) Party-directed mediation
C) Evaluative mediation
D) Med-Arb
E) Court-annexed mediation

Question 73

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

A) They are sometimes used by mediators to make the mediation processes more productive.
B) They only occur when mandated by a court order.
C) They involve negotiations between the disputing parties without a mediator and in the presence of their attorneys.
D) They are illegal because they are considered ex parte communications.
E) They are synonymous with de novo reviews.

Question 74

In the context of alternative dispute resolution,mediators __________.

A) can impose a binding solution on all disputing parties
B) typically use the principles of interest-based negotiations
C) must meet the licensing requirements for their decisions to be used in court if a dispute proceeds to litigation
D) typically help parties prepare for litigation
E) act as a necessary precursor to arbitration

Question 75

Mandatory arbitration can be constitutional if __________.

A) the disputing parties include a contract clause for arbitration in the agreement before dispute arises
B) licensed arbitrators preside over all proceedings
C) all disputing parties agree in advance to be bound by the arbitration award
D) fair procedures are provided by the legislature and ultimate judicial review is available
E) it is bound by the Supremacy Clause and the Commerce Clause of the U.S. Constitution

Question 76

Which of the following statements is true of voluntary arbitration?

A) Submission is required by statute.
B) The court will conduct a de novo hearing when reviewing the arbitration reward.
C) The procedure is associated with a court's supervision, and discovery is usually done.
D) The quality of the outcome is considerably affected when compared to mandatory arbitration.
E) The procedure is not tied to a court and is not bound by rules of evidence.

Question 77

In the context of judicial review of voluntary arbitration,error of law renders an arbitration award void only when __________

A) both disputing parties are dissatisfied with it
B) it violates a positive mandate of the law
C) the arbitrator reaches erroneous findings of fact from an evidence
D) it results in a huge financial loss for either of the disputing parties
E) the arbitrator misunderstands the law

Question 78

Jane is deprived of her alimony from Ben as he is reluctant to make a settlement.Which of the following statutes is most likely to be applicable in this case??A.Contract-based arbitration statute?B.Temporary arbitration statute?C.Postdispute arbitration statute?D.Mandatory arbitration statute?E.Predispute arbitration statute

Question 79

Which of the following statements is true of arbitration procedures?

A) All types of arbitration procedures are voluntary and cannot be forced on the disputing parties.
B) Mandatory arbitration is a more effective alternative to litigation than a voluntary arbitration.
C) Generally, the award resulting from the voluntary arbitration procedure is final.
D) If an arbitrator made erroneous rulings during a hearing, the award can be set aside.
E) An arbitrator's award is binding on the parties only if there was no error of law on the part of the arbitrator.

Question 80

_____ arise when parties already in dispute decide that arbitration is better than litigation.

A) Postdispute mandatory arbitrations
B) Involuntary arbitrations
C) Injunctions
D) Predispute contract-based clauses
E) Postdispute arbitration agreements