Dispute resolution

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Dispute Resolution paper involving the key concepts to mediation and arbitration. instructions attached 

4 to 7 page (double-spaced)

Writing assignments – The Paper should be double-spaced, with 1” borders, and 12- point font. Also, please put page numbers at the bottom of each page.

The grade on your Paper will be determined by how well you demonstrate that you’ve learned the concepts, principles and theories from class lectures, readings, and exercises in a Paper as described below: Take a “real life” negotiation or dispute resolution experience from your own life or from the outside world in Congress such as systematic racism, unequally division (that you read about in the news, for example). It might have occurred in the past, or it might be ongoing. Apply the principles, concepts, and theories discussed in the course materials as you explain how the issue(s) involved might be most reasonably, efficiently, and fairly resolved.

Examples from past papers:

· Following is a description of a dispute whose ‘resolution’ was a complete disaster; I will be writing about how one might approach the same matter now, using the ADR tools and theories from the course.

· I currently work (or have worked in the past) at an organization where I observed a particular issue being negotiated. In this paper I will discuss how that negotiation could have been addressed differently, and perhaps more effectively, based on what I have learned in the course.

· After presenting a brief description of a dispute or difficult situation, I will discuss—given the three options of mediation, negotiation, and arbitration— why I would choose _ as the most appropriate vehicle for resolution, and why the other two vehicles might not work as well. Role play simulations and other experiential exercisesYou will be required to participate in class exercises and role plays.

You will not be graded on the outcomes or results of these exercises and role plays. You will, however, be graded on your application of the principles of various alternative ADR Tools. Mediation, Arbitration mainly discussed in this class.

Reference Book: Alternatives to Litigation: Mediation, Arbitration and the Art of Dispute Resolution

Resolving Disputes with Negotiation,
Mediation and Arbitration

Professor DANIELLE L. HARGROVE – [email protected]



• Understand and be able to explain the primary
differences among the dispute

resolution processes of negotiation, mediation,
arbitration with litigation.

• Be aware of the factors involved in selecting
appropriate dispute resolution


• • Understand the roles of parties, lawyers, and
neutrals within each of these

• Understand the theoretical foundations of these ADR
processes, and how they can be useful in achieving
agreements and/or resolving certain kinds of disputes;

• Know and understand the basic
mechanics/rules/principles/theories related to these
ADR processes;

• Improve your ability to effectively engage in these
ADR processes, which comes from both “book
learning” and “behavior/skill learning” (i.e., from both
theory and practice)

Why are
you in this

“I work with contracts at work that have dispute
resolution clauses.”
“I am interested in bias and behavioral economics and
human behavior that drive judgment and decision

“I want to obtain knowledge and skills necessary to
manage the process at work to move parties toward a
fair and balanced solution.”
“I’m preparing for upward development at work.”

“I want to learn the common types of disputes in
healthcare settings and ways to resolve for health
equity and social justice.”
“I want to learn the fundamentals of dispute
resolution to handle client disputes effectively.”

“Learn the dos and don’ts involving disputes and best
way to achieve required outcome.”
“I want to learn more about how to deal with
‘difficult’ people.”

Why are
you in this

“To be able to handle disputes in a positive manner to get the
best possible results.”
“I want to learn how to apply these strategies professionally
and personally.”

“I want to sharpen my decision-making skills, to recognize,
evaluate, resolve issues in group crisis context and respond to
ethical dilemmas at the workplace.”
“To learn emotional control, situational awareness, and
emotional intelligence especially in politically intense

“It is a core course… but dispute resolution techniques are
beneficial in the workplace.”
“I want to learn how to be more neutral – take out my
emotion and personal beliefs to allow people to be

“I want to apply skills in my day to day dealings with clients,
studios and business vendors .”
“To assist me with my investigations at work.”

Why are
you in this

“To recognize critical factors that complicate resolving
disputes that arise at work.”
“Develop skills to increase my skill sets in consulting
with attorneys.”

“To better handle negotiations and disputes in my
personal and professional life.”
“To better work with our parent company’s legal
group on contracts to shorten the turnaround time for
our documents.”

“To learn legal parameters especially related to
residential property contracts for new and resale.”

“I hope this class cover techniques to use before the
mediation is scheduled to induce a better chance for
successful resolution.”

Is Dispute
an Art or a

What are
reasons for
of conflict
in the home

• Lack of/ Poor

• Fear of Dealing with
Conflict, abandonment,

• Lack of Control of
information or Outcome

• Opposing positions

• Competitive tensions
• Power struggles
• Ego/ Pride

• Lack of Emotional
driving decisions

• Jealousy
• Performance

• Compensation

• Personal Issues
• Mental Health

• Disrespect
• Unconscious Bias
• Systemic Problems

within Organization

of Dispute

Dispute Resolution Processes (ADR?)

• • Litigation/jury trial, bench trial

• • Arbitration (binding)
• • Private trial
• • Private tribunal
• • Early neutral evaluation

• • Non-binding arbitration
• • Summary jury trial
• • Mini-trial

• • Ombuds
• • Conciliation
• • Mediation
• • Negotiation

Recent Developments – Online
and Early Dispute Resolution
• Online Dispute Resolution (ODR) Early Dispute Resolution
• Private use Expedited Process – w/in 30 days
• eCommerce Speed of interest requires it
• eBay, PayPal Influenced by Collaborative Law
• Apps Efficient – cost/discovery
• ▫ Family Cons:

v Divorce, child custody Legal Profession Inertia
v Post-divorce communication Discovery

• Public use Client inertia
v Municipalities, agencies Sign of weakness if move first
v Tax assessment appeals Can”t accept 30 days

• Courts
v Family matters
v Debt collection


Negotiation Key Considerations
• Recognize when a conversation is (or can be) a negotiation
• • Know and use your Best Alternative To a Negotiated
• Agreement (BATNA)
• ▫ Know yours
• ▫ Consider how to improve it
• ▫ Use it as the basis for your “walk away point”
• ▫ Consider the other negotiator’s—and decide whether to influence it
• • Challenge zero sum (or “fixed pie”) assumptions – ask
• questions, get at underlying interests – and develop new
• solutions
• • Consider anchors or objective criteria – yours and other
• negotiators
• • Consider constituencies – yours and other negotiator’s
• • Consider emotions – and what you’re communicating about
• your respect for the other person
• • Define success in negotiation—outcome, relationship, both?

Getting to Yes
– Fisher and





Negotiation Principles: GETTING TO YES by Roger Fisher and William Ury




Know your BATNA – Keeps you from accepting
terms that are too unfavorable and rejecting offers
too favorable to reject

You are negotiating to get something better than if
you had not negotiated.

Ex: When a family is considering the sale price for
their home, the correct question is not what they
“ought” to get for the house, but what they will do
if the house does not sell in “x” time. Of ALL of the
considerations, which of THOSE is the best

Tips in
When you’re searching for a yes:

• Consider the obvious positive and negative
feelings your counterpart will have

• Prepare 3-5 Labels to defuse those negatives and
enhance the positives, if they exist

• Do a Cold Read of the environment you find
yourself in before you start speaking

• Use the Cold Read to fine-tune your Labels

• Cold Reads and Accusation Audits
• Cold Read is the process of assessing your

environment, the present circumstances,
and any history that might impact how your
audience receives your message before
driving for your yes.

• Accusation Audit is the clearing of the
negative emotions that get in the way of
deals, as the first move
• It probably seems like…

Tips in

Labeling shows that we are
attempting to gain an
understanding of the position
they are in, whom they have
to influence, and challenges
they face. It helps us uncover
the factors that drive

Exactly What To Say – Phil Jones
1. I’m not sure if it’s for you . . .

• This phrase makes them think:
• ‣I’ll be the judge of that!
• ‣Let’s them decide if it makes sense for them
• ‣Turns them into active listeners
• ‣Makes them sell the strategy to you
• ‣Allows you to propose this in a non-sales-y way

2.Would you be open to ________________?
• These phrases make it difficult for the other person to reject your idea and

makes them feel obligated to explore the possibility
• Why? Because everyone *thinks* they are open-minded ‣When

introducing a new idea, start with “How open- minded are you?”
• This will naturally attract them toward the very thing that you’d like them

to support – Everybody wants to be open-minded…

Exactly What To Say – Phil Jones

3. What do you know about _________?
• The phrase is a soft questioning of their knowledge base and forces

them to share their reference sources on which their argument is

• Crucial – Make sure your tone of voice and delivery is inquisitive (Oh…
that’s interesting, what do you know about…? Body language: Nod
your head and then turn your head sideways).

• casts enough doubt that makes enough consider other/back-up

4. How would you feel if . . . .?
• These phrases get people excited about seeing their future and gives

them a reason to move forward
• You need to create a big contrast between where they are today and

where this decision [working with you] would put them/do for them

Exactly What to Say – Phil Jones
5. Just imagine….

• Every decision anyone makes is made at least twice – the decision is first made
in your mind hypothetically before it is ever made in reality

• Creating pictures/visions in the minds of others is done by telling stories
• When you hear “Just imagine” the brain pictures the very scenario you are


6. When would be a good time to . . . ?
• You prompt the other person to subconsciously assume that there will be a

good time and that ‘no’ is not an option
• It is the kind of direct question that prevents people from telling you that they

have not got the time and, as a result, helps you avoid one of the biggest
objections people face

7. I’m guessing you haven’t gotten around to…
• Making a decision

Exactly What to Say – Phil Jones
• Signing the contract
• Getting the paperwork
• Calling the bank . . . Compliance….
• This allows the other person to save face, but it also eliminates

the excuse they have already prepared – it’s preemptive
• They respond in 1 of 2 ways: either they feel proud that they

have done what they had promised, or they are embarrassed
that they haven’t and make a new promise to take the action

• By pushing the negative scenario, you get them to rise to the
positive or tell you how they are going to fix things so they are
not called out again

8. Simple swaps
• Turn an open question into a closed one.
• “Do you have any questions?” into “What questions do you

have for me?”

9. As I see it, there are three (good)

• People hate to feel manipulated or and nearly always want to feel like
they made the final decision

Exactly What to Say – Phil Jones
• When they need help deciding, using these words can

help narrow their gaze, reduce their choices and make
it easier for them to pick
• This makes a difficult decision, with a lot to think

about, completely effortless
• It allows you to to appear impartial
• But you can display/frame the options in a way

that guides them to your preferred choice
• Leave your preferred choice until the end – it’ll

allow you to easily build the value of the option
and load the choices, so your preferred outcome
stands out as the winner

10. I bet you’re a bit like me…
• A powerful tool to help gather evidence to use in building your

later recommendations
• It results in the other person comfortably agreeing with you
• It helps avoid many common objections by gaining full

agreement with something they may otherwise have tried to
use as a future excuse

Comparing Arbitration and Mediation

• Third party decides outcome
• Third party applies external norms

(reasonable person/ case

• Not conducive to Holistic, creative

• Often treated as Litigation Lite
• Formal decorum maintained
• Generally, win-lose—but may be

• Generally binding decision
• Compliance not guaranteed, but

possible with judicial enforcement

• Disputants decide outcome
• Disputants’ norms control—but

external norms also relevant
• Holistic, creative resolution more

• Parties’ “voice” includes initial

presentation and, perhaps, give-and-

• Collaborative generally, relatively
informal tone fostered

• Opportunity for win-win, WINwin, or
at least OK-OK • No guaranteed

• If resolution reached, greater
compliance with outcome

• Arbitration • Mediation


Aspects of

Control of the outcome

Confidential Process*

Low transaction costs for
the process

Can often maintain or
transform relationships






The Mediator

The Mediator:

• Neutral

• Controls the process, not the outcome
• Sets the tone
• Establishes ground rules

• Builds rapport with both parties

The Mediation

Mediator Introduction

Joint Session

Opening Statements


And now…
• Do you know enough about mediation and
arbitration—or the other processes–to educate a
colleague or superior about them?
• Do you know enough about these processes to
help a colleague or superior decide whether and
when to use them?
• Do you know enough about these processes to
help a colleague or superior decide how to
structure these processes or choose a neutral?

Phil Jones – Exactly What to Say
• 1. I’m not sure if it’s for you but…
• 2. Open-minded (e.g. “Would you be open to….?)
• 3. What do you know about. . .?
• 4. How would you feel if…?
• 5. Just imagine…
• 6. When would be a good time?
• 7. I’m guessing you haven’t got around to…
• 8. Simple swaps (e.g. turning “Do you have any questions?” into “What

questions do you have for me?”)
• 9. As I see it, there are three options.
• 10.I bet you’re a bit like me.
• 12.If you… then… (e.g. “If you decide to give this a try, then I promise you won’t

be disappointed.”)
• 13.Don’t worry…

Why Arbitrate?

• “Efficiency”* in:
• Time to hearing
• Time to decision
• Costs
• More control over

• Discovery
• Easier access to fact-

finder for disputes in

• Resolution (mediation
often part of process)

• Mutual Selection of

• Confidentiality/Privacy

• Same remedies as trial

Arbitration History and Arbitration Agreements

Legal Framework of
the FAA
• FAA, 9 U.S.C. §§ 1-14
• § 2. Validity, irrevocability, and
• § 4. Failure to arbitrate under
• § 5. Appointment of arbitrators or
• § 7. Witnesses; fees; subpoenas
• § 9. Award
• § § 10. – 12. vacating; rehearing;
modification or correction
• § 13. enforcement
• § 16. Appeals

4 most common types of difficult
• 1. The “Yes, but…” person
• The “Yes, but…” person is one who discounts or rejects just about everything you say. They will appear

to be unable to make decisions, making you responsible for the lack of progress in the dialogue. They
will acknowledge the validity of the option/decision/action, but there is always a reason why it will not
• How To Win Them:

• One of the most effective ways to deal with this type is by way of the Label and Calibrated Questions.
Respond to the “Yes, but” person with calibrated question driving them to provide the solution such as,

• “You seem to be having some difficulty accepting what I am proposing. How should we resolve this?”
• 2. The Always Suspicious
• The suspicious person is controlled by fear on some level which makes the establishment of rapport

• How To Win Them:

• A Paraphrase and Calibrated Questions may be in order. By using these techniques in this fashion, you
are identifying the trust issues and refocusing them on the underlying cause of their suspicion.

• “You seem to be having a problem trusting me and my company. What can I do to allay some of your

3. The Hostile
The hostile or angry person attempts to control you through intimidation. This is the individual who personalizes
angry responses and insults you because it is their default coping mechanism. It is also used as a common an
avoidance response.

How To Win Them:
Your first response is to control yourself. The only thing you have absolute control over is your response and
emotions. If you speak in anger, you will make the best speech you will ever regret. The next step is to use an “I”
Message to confront the person without sounding confrontational. “When you ________, I feel ___________
because _________”.

When they challenge you about labeling their hostility, you can respond by saying,

“I didn’t say you were angry. I said you sounded angry. Help me understand how what I am hearing is wrong.”

4. The Challenger
The challenging subject attempts to exert power and a sense of superiority over you. He or she will challenge
your experience, knowledge, expertise, ability, or authority. Their focus is on you, not the issue. They are the
consummate derailer. You will find them to be calm, composed, and appearing to enjoy the “game.”

How To Win Them:
Don’t respond directly to the challenge or the insult. Avoid a power or knowledge struggle. Again, your control is
paramount. Show no negativity in tone or response. Ask what they would do if they were in your shoes in the
form of a calibrated question.

How would you approach this if you were me? What would you do differently if you were in my shoes?

Be firm and principled. Don’t back down simply because they are being difficult. Use your Black Swan skills to
determine the underlying cause of their behavior to change it and gain the edge.


Why Arbitrate?

• “Efficiency”* in:
• Time to hearing
• Time to decision
• Costs
• More control over

• Discovery
• Easier access to fact-

finder for disputes in

• Resolution (mediation
often part of process)

• Mutual Selection of
• Confidentiality/Privacy
• Same remedies as trial

Topics for

Terms of Arbitration Agreement




Judicial Review of Arbitration Awards

Privacy and Confidentiality






Why the need for Privacy and/or

• Propriety information or processes
• Personnel/ personal matters
• Sensitive matters
• Trade secrets
• Financial Information
• Mergers and Acquisitions
• Avoidance of Copy Cat claims

• Privileged Information
• What can parties do to protect their

• Protective Orders
• Confidentiality Agreement in the

arbitration agreement or post filing of
arbitration claim with or without
liquidated damages clause

• Avoid an award with Findings of Fact
and Conclusions of Law

• Public v. Private Sector Case
• Enforcement

– 3


• Whether the parties entered into an agreement
to arbitrate (and who decides);

• Whether a specific issue or dispute is included
within the scope of the arbitration agreement
(and who decides);

• Whether any conditions that might be necessary
to trigger the contractual duty to arbitrate have
been satisfied (and who decides).

Relevant arbitrability

• First Options of Chicago, Inc. v Kaplan (SCOTUS 1995) (who decides)
• MKI is only party that signed an arbitration provision in the

workout agreement
• Kaplans did not sign the MKI workout agreement personally
• Panel of arbitrators decided they had the power to rule on claim

Kaplans were liable for MKI debt and ruled against the Kaplans.
• Kaplans sought to vacate and appealed to 3rd Circuit and won

with Court finding the dispute was not arbitrable and reversed
the trial court

• Holding: A court must defer to an arbitrator’s arbitrability decision when
the parties submitted that matter to arbitration. A fair and complete
answer to the standard-of-review questions whether the parties have
agreed to submit the arbitrability issue to arbitration. It is clear on the
record before us, First Options cannot show that the Kaplans clearly
agreed to have the arbitrators decide or that the Kaplans agreed to
arbitrate arbitrability in this case. Therefore, can’t force them to
arbitrate and arbitrators shouldn’t have heard the case.

• Why do you think the Kaplans wanted to avoid arbitration?

Relevant arbitrability
cases, cont’d

• Steelworkers Trilogy
• 3 cases decided in 1960 established the presumption of arbitrability in

Labor-management contract disputes
• Agreements enforced but must have positive assurance that the

arbitration clause is not susceptible of an interpretation that covers the
asserted dispute.

• Howsam v Dean Witter Reynolds, Inc. (SCOTUS 2002)(subject matter

• Dispute arises out of investment advice Dean Witter gave to
Howsam to hold interests in four limited partnerships some time
between 1986 and 1994

• Howsam alleges Dean Witter misrepresented the virtues of the

• The Dean Witter standard Client Service Agreement’s arbitration
clause provides “ all controversies . . . concerning or arising from .
. . any account . . . any transaction . . . , or . . . the construction,
performance or breach of . . . any . . . agreement between us . . .
shall be determined by arbitration before any self-regulatory
organization or exchange of which Dean Witter is a member.” The
agreement also provides that Howsam can select the arbitration
forum. She chose the NASD.

Relevant arbitrability
cases, cont’d

Howsam v Dean Witter , cont’d.
• Provision in arbitration clause stated no dispute “shall be

eligible for submission . . . where six (6) years have elapsed
from the occurrence or event giving rise to the . . . dispute.”

• Dean Witter filed lawsuit to stay her arbitration claim arguing
a limitations defense and sought injunction from arbitrator

Holding: Ct said it was for the arbitrator to decide as a
“gateway question”. Also recognized as “procedural questions
of arbitrability” where a condition precedent to arbitrability has
been fulfilled:
• Time limits
• Estoppel
• Notice
• Laches

Relevant arbitrability cases, cont’d
Prima Paint Corp v Floyd & Conklins MFG, Co.

• On October 7, 1964, Flood & Conklin Manufacturing Company, entered into a “Consulting
Agreement,” with Prima Paint Corporation. This agreement followed the execution of a contract
pursuant to which Prima Paint purchased F & C’s paint business. The consulting agreement
provided that for a six-year period F & C was to furnish advice and consultation “in connection with
the formulae, manufacturing operations, sales and servicing of Prima Trade Sales accounts.”These
services were to be performed personally by F & C’s chairman, Jerome K. Jelin, “except in the event
of his death or disability.”

• F & C bound itself for the duration of the contractual period to make no “Trade Sales” of paint or
paint products in its existing sales territory or to current customers. To the consulting agreement
were appended lists of F & C customers, whose patronage was to be taken over by Prima Paint. In
return for these lists, the covenant not to compete, and the services of Mr. Jelin, Prima Paint
agreed to pay F & C certain percentages of its receipts from the listed customers and from all
others, such payments not to exceed $225,000 over the life of the agreement.

• The agreement took into account the possibility that Prima Paint might encounter financial
difficulties, including bankruptcy, but was silent to possible financial problems by F & C. The
agreement stated that it “embodies the entire understanding of the parties on the subject matter.”

• The parties agreed to a broad arbitration clause, which read in part: “Any controversy or claim
arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in
the City of New York, in accordance with the rules then obtaining of the American Arbitration
Association . . .”

• Prima Paint notified attorneys for F & C that in various enumerated respects F&C had broken both
the consulting agreement and the earlier purchase agreement claiming it had fraudulently
represented that it was solvent and able to perform its contractual obligations, whereas it was in
fact insolvent and intended to bankruptcy shortly after execution of the consulting agreement.

• After considerable litigation, the District Court, granted F & C’s motion to stay the action pending
arbitration, holding that a charge of fraud in the inducement of a contract containing an arbitration
clause as broad as this one was a question for the arbitrators and not for the court.

Holding: The Court only hears claims that go to the making of the arbitration clause itself. If
the claim of fraud in the inducement is of the arbitration clause itself, then the Court hears it.
The Court will not hear an independent, general claim of fraud in the inducement of the overall
contract. That is for the arbitrator, particularly because of broad arbitration clause.
Who agrees the case should be affirmed? Reversed?

You be the Arbitrator
• Grievant was a school bus operator for nine years, with a satisfactory work record, and no serious

discipline except a suspension six years prior for talking on a telephone while operating a bus.
• She was discharged for misconduct for utilizing a school bus to take her minor children to daycare;

and in doing so, left her scheduled route; left the keys in the ignition (with the bus running) and the
bus unattended while she dropped her children off at daycare; using toll roads to return to her route
without authorization; arriving at two of her stops more than five minutes late; failing to call dispatch
to give the Employer notice of her delay for each late arrival; and generally failing to comply with
laws, rules and regulations, policies and operating procedures. In this instance, no one was injured
nor were any students late to class. Grievant did not call her supervisor initially because she had
recently been counseled about tardiness.

• The Union contends that the Grievant was not terminated for just cause and that she should be
returned to employment. The Union argues that the degree of discipline was not reasonably related
to (a) the seriousness of the employee’s proven offense, and (b) the Grievant’s record. Specifically, it
argues that Grievant’s decision to bring her four minor children (all under the age of 4) to work at
5:00am, designed only to ensure she got to work on time, does not warrant the punitive termination
action when administering progressive discipline would have been more appropriate given the
circumstances. The Union argues that using a toll road without permission, failing to obtain
permission before deviating from her route, and leaving her key in the ignition were minor
infractions which were the result of Grievant simply trying to get to work on time.

• The Employer argues the Grievant was terminated for just cause and asks that the claim be denied
because the Grievant’s conduct constituted “misconduct in office” and “willful neglect of duty,” in
violation of the Employer’s rules of conduct and the parties’ collective bargaining agreement. The
Employer further argues that the Grievant violated provisions of the Transportation Handbook which
constitute adopted school board rules; and, that each violation on its own, serves as grounds for

• You are the Arbitrator, Would you uphold the termination?
• To what extent does it matter if Grievant thinks it shouldn’t matter that she broke a few rules

because all of her students got to class on time?


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