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Details Title: ADR Description: simpson Total Flash Cards: 67 Created: 12/05/2006 20:25:23	To study from this set of flash cards, or to create your own your own study flash cards, register HERE. If you are already a registered user, CLICK HERE.
Cards Term Tennessee Import 4 part test Definition 1) Is it in writing? 2) Does agreement provide for arbitration in the territory of the signatory country? 3) Does agreement arise of a legal relationship? 4) Is the party to the k not an American agreement…Is it an International Agreement? Term Bradford v. Rockwell Definition Establishes that the fee splitting provision will be applied on a case by case basis. Bradford was denied because he could not prove that he could not pay. The plaintiff had not only initiated the arbitration but had enjoyed the full benefit and lost and just because he lost cannot claim unfair Term 4 ways to establish vacator Definition • Fraud • Evident corruption • Misconduct of arbitrators • Where the arbitrators exceed their powers Term If you want to preserve the record for appeal you must Definition • Have a court reporter • Get a reason • Pre-trial brief Term 3 things to set up manifest disregard for the law Definition • Have court reporter • Have reason • Pre-trial briefing Term How do you prepare yourself for mediation? Definition 1) Position statement 2) Evaluate Case 3) PowerPoint Presentation Term How do you prepare a Client? Definition 1) Have a meeting…How much prep time-important/tough decision 2) Do you let them talk a. Maybe i. Yes-It might let them get stuff off their chest especially if claiming too high 1. it might help your case if they are a good speaker a. Don’t let them talk bad about the other side Term What is the record on appeal? Definition Everything that is filed or recorded by the court reporter Any party has the right to bring a court reporter Term Simple Award Definition Only says what you owe (don’t want if you are appealing). Plaintiffs want a simple award and no court reporter Term Reasoned Award- Definition Gives law the arbitrator used to reach an opinion and why –Required for a Section 10 appeal. Term Commerce in Fact Test Definition generally makes enforceable a written arbitration provision in a contract evidecing a transaction involving commeces so that 2 requires only that the transaction in fact involve interstate commerce even if it was not contemplated. US SC applied this in Terminex Term The contemplation Test Definition Alabama applied this...did the parties contemplate an interstate connection Term Citizen Bank Definition Last time Alabama probably strikes down a commerce clause again Term Rules of Construction- Definition 1) Severability-court will cut out a piece and throw it away 2) Integration-this is it-no parol evidence 3) Clause which would cause a court to not construe against a drafting party Term The Essence Test- Definition the reward is valid as long as it recives its essence from the cba.. Term Circuit City v. Adams Definition Problem with putting an arbitration agreement in handbook-handbooks usually reserve the right to change by employees-therefore that will make the agreement unilateral and will be an illusory k. So just put a rule in the arbitration agreement that says you have to sign the free standing agreement Term Section 1 of the FAA tells us what is covered Definition One of them is maritime transactions Another is interstate commerce If you are a transportation worker you are not covered by the act (nothing shall apply to employment K involving interstate commerce) The big employers in the 1920’s got this provision included Term McMahon Test-SC instructed to consider whether Congress intended to preclude arbitration of a statutory claim. 3 factors: Definition 1) The text of the statute 2) Its legislative history 3) Whether “an inherent conflict between purposes (of the statue) exists. a. The party opposing the enforcement of the arbitration agreement has the burden of showing that Congress intended to preclude arbitration of the statutory claim *Under McMahon, administrative law is not a piece of that test Term Chevron Test- Definition 1) Whether Congress has directly spoken to the precise question at issue a. If the intent of Congress is clear, that is the end of the matter. 2) If the court determines Congress has not directly addressed the question at issue, the court is whether the agency’s answer is based on a permissible construction of the statute. Term Davis and Southern Energy Homes Definition Warranty claims arising under the MMWA may be subject to valid binding arbitration agreements. Term Green Tree Financial Definition 2 holdings 1) An order compelling arbitration and dismissing the party’s underlying claim is a final decision with respect to an arbitration, and is immediately appealable pursuant to the FAA. 2) An arbitration agreement’s silence with respect to such matters not mentioning arbitration costs and fees does not make the agreement unenforceable. Term Mediation-- Definition an extrajudicial procedure for the resolution of disputes. A mediator facilitates negotiations between parties to a civil action and assists the parties in trying to reach a settlement but does not have the authority to impose a settlement upon the parties. (Alabama Civil Court Mediation Rules, Rule 1(a)) Term Arbitration-- Definition legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the "arbitrators" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. (wikipedia) Term BATNA Definition term coined by Roger Fisher and William Ury in their 1981 bestseller, Getting to Yes: Negotiating Without Giving In.[1] It stands for "best alternative to a negotiated agreement." BATNAs are critical to negotiation because you cannot make a wise decision about whether to accept a negotiated agreement unless you know what your alternatives are. Your BATNA "is the only standard which can protect you both from accepting terms that are too unfavorable and from rejecting terms it would be in your interest to accept."[2] In the simplest terms, if the proposed agreement is better than your BATNA, then you should accept it. If the agreement is not better than your BATNA, then you should reopen negotiations. If you cannot improve the agreement, then you should at least consider withdrawing from the negotiations and pursuing your alternative (though the costs of doing that must be considered as well). Term  FAA recognizes four grounds for setting aside arbitration award Definition o Award was procured by corruption, fraud, or undue means o There was evident partiality or corruption in the arbitrators, or either of them o Arbitrators were guilty of misconduct in refusing to postpone the hearing…or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced o Arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made Term  Alabama recognizes three other (common law) grounds for setting aside arbitration award: Definition o Contrary to public policy o Arbitrary and capricious o Manifest disregard for the law – you need a record to show this Term Test know the difference between a grant and denial under section 16 Definition Section 16 – Unequal appellate rights in FAA b/c pp favoring arbitration. Lower court denies arbitration there is a direct appeal. Lower court grants arb then there is an interlocutory appeal. Int appeal, lower court has concurrent jurisdiction with appellate court. Dir appeal, lower court loses jurisdiction. This happens in any other jurisdiction but AL. FAA favors arbitration therefore the one who is looking to have arb granted is looked at more favorably. Term Doctrine of functus officio Definition that once the arbitrator has rendered the award…they lose jurisdiction… Term doctrine of revocability Definition gave parties the right to cancel the agreement without penalty at any time prior to the issuance of a ruling Term Section 3 of FAA Definition the procedural method to engage in motion practice while in court. Motion to compel arbitration in Court. Term Section 4 of FAA Definition sue in fed ct for the sole purpose to obtain an order to compel arbitration. Need independent fed juris. Usually get better judgments in fed. Ct. “FAA does not confer fed juris by itself” FAA not a fed question. No COA under the FAA, Just a procedural mechanism. No one tried to bring an FAA issue in state courts until the 1960’s Term Sisters of Visitation Definition coming to rest doctrine Term Alafabco Case Definition rejected the sisters doctrine Term Rule 501 Definition tells a fed ct when to apply a state priv. Law. Rule 501 also tells a fd ct when to make a law when there is an absence of one in a state. Term Kulukundis Shipping Co., S/A v. Amtorg Trading Corp. Definition Under United States Arbitration Act where court determines existence of arbitration clause and sends issue to arbitrators, the arbitrators do not have jurisdiction to determine whether contract is valid or binding. The United States Arbitration Act does not cover an arbitration agreement sufficiently broad to include a controversy regarding the existence of the contract that embodies the arbitration agreement. Term ouster doctrine Definition courts were jealous of their domain and didn’t want to relinquish it Term Federal common law of arbitration: Definition Any ambiguities are decided in favor of arbitration and not against it. Term  Statutory reasons for vacating an arbitration award: (page 916) Definition o Where the award was procured by corruption, fraud, or undue means o Where there was evident partiality or corruption in the arbitrators, or either of them. o Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced. o Where the arbitrators exceed their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. o Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators. Term  Doctrine of intertwining Definition Originally, when there were arbitrable claims and those not mentioned in the arbitration clause, both were swept into court rather than arbitration. Now the opposite is true. You can sweep unmentioned claims into arbitration.  Piecemeal litigation is all right!  What if there are two contracts involved and each has an arbitration clause, but they specify different arbitrators? It is probably okay to have piecemeal arbitration. Term  Standard of review for collective bargaining arbitration cases Definition a labor arbitrator’s award does draw its essence from the collective bargaining agreement’ if the interpretation can in any rational way be derived from the agreement, viewed in the light of its language, its context, and any other indicia of the parties’ intentions; only where there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop, may a reviewing court disturb the award” Term  Standard of review for commercial arbitration cases Definition a ‘mere error in the law or failure on the part of the arbitrators to understand or apply the law’ will not justify judicial intervention, and that the courts’ function in confirming or vacating a commercial award is ‘severely limited…’” “the interpretation of …arbitrators must not be disturbed as long as they are not in ‘manifest disregard’ of the law.” Term  Reason for these different standards – there are different goals Definition o In a commercial case, arbitration is the substitute for litigation. o In a collective bargaining case arbitration is the substitute for industrial strike. Term Wilson v.Waverlee Homes Definition MMWA precludes warrantor from compeeling consumer claims to arbitrate Term Davis v. Southern Homes Definition 11th circuit abrogated Wilson and its progeny, effectively ending the MMWA defense to arbitration Term 4 things on a settlement agreement Definition 1. Get all the claims released with pay in exchange. 2. Need to file a statement with the court (with or without prejudice). 3. First paragraph talk about payment to other party and attorney fees. 4. Get paid for claims released Term 5 major perceptual errors Definition 1. Stereotyping 2. Halo Effect 3. Selective Perceptions 4. Projection 5. Perceptual Defense Term Case Evaluation Factors Definition 1. Venue 2. Judge 3. Facts-Theme/Theory 4. Heat-Facts that will make a jury mad 5. Witnesses 6. Cost 7. Opposing Counsel Reputation 8. Quality of evidence Term 2 types of mediators Definition 1. Facilitators 2. Evaluative Term wheel Case Definition Essence Test Term FRCP 16 Definition Settlement Conference with judge. Judge power/discretion Term Stereotyping Definition attributes are assigned to people soley on the basis of their membership in a particular socil or demographic group Term Halo effect Definition Taking one attribute of someone and you generalize about their other attributes Term Selective Perception Definition You percieve one attribute and decide about that person as a whole Term Projection Definition an individual ascribes to others charachteristics or feelings he possesses himself Term Perpetual Defense Definition we screen out information that makes us uncomfortable Term Duty in a negotiation Definition you cannot knowingly misrepresent facts Term Rule 68 Definition offer of judgment that is open only for 10 days...attorney can be sanctioned for turning this down Term rule 16 does not require every represented client show Definition what if bill gates had to show to every case? Term does mediator have obligation to be fair? Definition there is no fair in law...they are suppose to get a good deal..but cant say what is fair Term what is the differnce between family and civil law mediation Definition 1. Face to face is not always best 2. Sometimes there needs to be a therepuetic aspect. you are dealing withe helping people get past pain Term Who pays for mediation? Definition if you move, usually you pay. if not, it is usually split. Term Reality Testing Definition when a mediator is in private cause, they ask open ended questions to facilitate Term when is a mediation not voluntary Definition 1. k requirement Term as of 2003 class action Definition yes you can class action an arbitration agreement Term fixed pie assumption Definition assume interest are direclty in conflict with other side Term FRE 408 Definition offers of compromise should not be admissible in court Term waverlee homes Definition plaintiff lets defendant out of arbitration and all that stuff