I would first listen carefully to my clients’ expressions on their interests, values, etc.

because the most important thing for a mediator to do is understand the problem.
- Consider the location of where the negotiation takes place; don’t want
either party to feel disadvantaged; should be neutral
- Consider the time/length of negotiation; deadlines are very important
o “If you don’t decided by X days, the mediation is over.” –MG
o By contrast to mediation, Everything is really slow in the litigation
system
- Identify the relevant parties
- Consider barriers to the negotiation (p. 291 & p. 304)
- Do you want to keep everyone together for the mediation or have separate
caucuses? (see exam sample answ #2, p. 2 of 10)
- Put the agreement in writing so its enforceable and neither party can back
out. As the mediator, I would do the drafting and make sure the parties are
happy with the terms that are used.
- Set expectations and overall goals (see samp answ #2, p. 2)
- What tactics should you use? (e.g. threats? humiliating? To what degree?)

9/8
- Everything is fair game; you can design any dispute resolution you want to

- Ex.) Mini Trial

o You have an abbreviated trial
o Each side hears the best case of the other side & is more likely, therefore,
to put themselves in the shoes of the other side
o But problem: You’re letting the other side see your whole argument &
thus the other side might hold back in reaction
- Tailoring a process to a particular kind of dispute
o E.g. if a dispute is ten cents, it makes no sense to have a big, expensive
legal litigation process as your solution
- Look at the process & the context at which it’s going to be placed

p. 21 Problem 1-4: Choosing an Appropriate Process

(a) Congressmen are typically in the “deal-making” business; there’s often a
Christmas tree structure to their deals (if you don’t like one, you can
move down to another solution)
(b) Prof. pretty much always wins  b/c set curve (polycentric problem)
(c) Insurance companies fight it out
(d) Listen to child; problem force to go
(e) Employee probably signed an employee contract with an arbitration
clause; otherwise, probably goes to litigation
(f) Special Master might get to weigh in (like in the World Trade Center—
gave out ~$2 mil each); not always will these victims get money

p. 22
- Public vs. Private
o You can make the private public too & vice versa (by making the private
decision public / sealing the public decision)
- Consensual/Voluntary vs. Compelled/Mandatory
- Nonbinding vs. Binding
- Informal vs. Formal
o E.g. having a judge and not a jury could make it less formal
- Oral unwritten process and decision vs. Written rules, process, and decision
- Temporary/Contingent Decision vs. “Permanent” Decisions or Outcome
o “This is the solution for the next 20 yrs.; in 20 yrs, you’ll have to meet up
again and work it out all over.”
- Parties only vs. Other participants (representatives or 3 rd party neutrals)
- Dyadic (2 party) vs. Multiparty
- Competitive vs. Collaborative
- Etc.

- The Range of Available Alternatives (p. 24)

o Look at these 5 Considerations to Determine Best Strategy: (p. 27)
 Nature of Dispute
 Relationship Between Disputants
 Amount in Dispute
 Cost
 Speed

- Private ADR Processes (30-31)

o High/Low Arbitration (p. 31):
 Arbitrating parties agree “I will pay at least $100,000 but no more
than $6 mil.”
 Jury verdict = $6.5 mil
o  Pays only $6 mil
 Jury verdict = $0
o  Pays $100,000
o State Farm Negotiation
 Goes little by little; Dollar by dollar
 You’re going to end up in the middle anyways, but you have to go
through the whole “dollar by dollar” process
o “Baseball” or “Final-Offer” Arbitration
o Arbitration (30)
o Binding
o Non-Binding
o Fact-Finding
o Mediation (31)
o Med-Arb
o Mini trial
o Multi-Step ADR
 o Negotiated Rule-Making (NegReg)
o Ombudsperson
o Partnering
o Pre-Dispute ADR Contract Clause
 Employment & Commercial Contracts—prior to a dispute, you
agree to use a particular dispute resolution technique
o Two-Track Approach (34)

- Court ADR Processes (34)

o See p. 34-36
o Summary Jury Trial
o Appellate ADR
 Median while a case is on appeal

3 Strategies
(1) Community/Deliberative/Democracy
o Speed, low cost, increased party participation, tailored solutions

9/10

Negotiated Rule-Making (“Reg Neg”) (p. 33)

- Administrative rules that in effect regulate everything we do in life (e.g.
regulated by FDA, EPA, etc.)
- If you want to change the rules:
o You can negotiate the rules so you don’t have to go through the whole
administrative process
 The idea behind this is if we get all interested people together who
want to change the rule(s), we can get them to agree and
negotiate & it improves efficiency, less costly, more
quickly/expedited, etc.
 Realistically, this hasn’t been successful, though sometimes
it has

Ombudsperson (33)
- Appointed by the (large) institution to investigate complaints within the
institution
o Problem: b/c the ombudsperson is hired by the institution, there’s concern
over whether this person is actually neutral

Partners (33)
- Pre-dispute prevention method where parties meet each other and discuss
potential issues and how to resolve them prior to the project going underway
- Often used for large construction projects

Pre-Dispute ADR Contract Clause (33)

- A clause that provides for a mechanism (e.g. arbitration, negotiation, etc.) for
resolving disputes & the applicable law & the applicable jurisdiction

Two-Track Approach (34)

- Example:
o Carol Doda – silicon breast implants
o There was litigation against companies claiming these silicon implants
were causing health problems
o There were 2 groups of attorneys hired
 1 saying the implants did NOT cause health problems
 1 working on getting a settlement

COURT ADR PROCESSES (34—MG says this is really important)

- Why did dispute resolution flourish so much in CA?
o In the 1950s-60s, the law was very favorable to plaintiffs/the injured
party
o It was so favorable that plaintiffs would file lots and lots of cases
 This ultimately caused a backlog because there were so many
cases that it took forever to get a case to court
 So the judges came up with the idea for former judges to
mediate these cases
o Plaintiffs figured out that through mediation, they
could get their money faster
o Defendants learned that a settlement was better for
them as well; defense attorneys also were less likely
to lose a case
o There was a worry that rich people could hire their own private mediator
for lots of money whereas others would get a public mediator
 So courts decided to annex (add to) the public system a private
method of solving disputes
  Court-Annexed Mediation (34)
o The court makes you go to mediation
- Early Neutral Evaluation (34)
o Early in the process, before people have spent a lot of money in litigation,
they are evaluated and told if they are better off spending that money in
a settlement
- Court-Annexed Arbitration (34)
o Arbitrators issue a non-binding judgment on the merits, which can be
rejected by either party, thus resulting in proceeding to trial
- Summary Jury Trial
o An abbreviated trial
 o Non-binding process that gives parties the idea of what might happen if
the case if tried
o Tried to a jury
 Unlike a Minitrial, which usually gets tried to a judge
 But it’s also an abbreviated trial; it’s just not tried to a jury
- Appellate ADR (35)
- Judge-Hosted Settlement Conferences (35)
o The MOST COMMON form of ADR
o Judges generally host settlement conferences to try to resolve the cases
 Drawback: that the judge hears everything in the negotiation
process; can substitute another judge to oversee this part of the
process though
- Court Minitrial (36)
- Multidoor Courthouse or Multi-option ADR (36)
- Settlement Week (36)
- Private Judging (36)

9/15

- When there are instances of unequal bargaining power, ADR is not always
appropriate; but don’t give up if there’s unequal bargaining power since there’s
ways to remedy this
o If you have 2 parties with unequal bargaining power, to get the party with
less bargaining power more bargaining power, you need to explain to the
more powerful party that it’s in their interest to give the other party more
power than it initially has
- Ted Turner  played to his ego
o - Mediator: “If you pay $24 million in alimony, that will be the most
amount of money ever paid in a divorce proceeding. You’ll be famous”

- Ted Turner: “Okay, sure!”

- Cases dealing with principles (such as Abortion) are NOT SUITABLE for
Mediation

- Informality:
o Sometimes—albeit not always—informal rules (instead of formal rules)
work better
o The key is that you recognize that it either be a strength or a weakness

- Coercion:
o Typically not appropriate for Mediation
o Often leads to “Decision Regret”
- Privatization (
o When it comes to matter of principle or public issue, discriminating as a
private entity might not bode well for ADR
- Be aware of these weaknesses
- Consider if you can turn them on their heads so they can work to your
advantage
- Consider weather you should use ADR in these circumstances

p. 38 –Meadow is very in-tune with Morality (Structural Values; Institutional

Values; etc.)
- Meadow’s point is: Not every deal is a good deal
o Sometimes b/c of moral reasons
o E.g. NFL has tried to sweep everything under the rug, but from an
institutional/societal perspective, this shouldn’t be done
- Every now and then we need litigation—we need society to stand up and say
“This is bad conduct!”

Own Fisk (p. 39)

- Discusses efficiency
- You really need justice, not just peace

Nancy Welsh (p. 43)—Four Procedural Elements:

- One of the great assets of procedural justice is that ppl get to express their views
and someone listening gets to really listen and understand what the parties say
- They receive procedural justice from each other
- Difficult to provide procedural justice when you have tens of thousands of clients

- Agency Failure
o The agent has certain interests & the clients have certain interests
 Thus the principles on p. 43 that Nancy Welsh is talking about
could be violated

- Litigation itself can create bargaining power and prompt a party to settle b/c
going through w litigation would be more expensive/costly

GO THROUGH THE QUESTIONS ON P. 47

CHAPTER 2: THE LAWYER AS PROBLEM SOLVER (p. 49)

- The chapter says you can be adversarial, but that your fundamental role is that
of a problem-solver
o This is always how transactional/deal-makers work
o But also, MEDIATORS should develop skills that enable you to
create or claim more value for your client!
 These SKILLS are listed on p. 50  (see yellow top HL on p. 50)
  Other necessary skills to be a GOOD NEGOTIATOR (which
is needed in Mediation) include (p. 51–52):
o Expertise: Substantive expertise/knowledge;
Process expertise; Special influence
o Detachment
o Tactical Flexibility
- Why do we need to have attorneys in ADR? (see p. 53)
- It’s helpful to have lawyers when there is knowledge and strategy
concerning the legal process (see p. 53–54)
(1)Knowledge and Strategy of the Legal Process
a. Pro se representatives don’t understand the legal process
b. Success rates in litigation for pro-se clients = very low
(2)Gathering and Presenting Factual Information
a. Lawyers understand which facts are important
(3)Researching the Presenting Legal Arguments
a. Strength and weaknesses of legal arguments is important as to
deciding whether a disputant ought to settle on particular terms
(4)Empowering Clients
(5)Drafting Agreements

- Sources of the Tension –Mnookin (p. 55)

o Create a collaborative that minimizes agency costs
o Consider the incentives created by agency relationships on the other side
- Client- Centered Approach (p. 57)

9/17—A Client-Centered Approach (p. 57)

- Dealing w gov’t is very difficult b/c gov’t decisions are very politically-charged
- HYPO:
o X says you can have $20 today or take the money in a year
 You take the money now because if the inflation rate goes up and
the value of that dollar goes down 1%, the $20 is worth more now
than it is next year
o NOMINAL VALUE: $20 is $20
o NET PRESENT VALUE:
 If you’re promised “I’ll give you $20 a year from now,” that same
$20 is really worth $19 because it’s value went down in the year

- Nominal Dollars: it’s always the same amount

- Net Present Value:
- SO, if you’re negotiating w an insurance company over money, the insurance
company will drag it out b/c for them it’s less expensive for them to pay for the
lawyers than to pay out now
- “Time Value of Money”: people want to hold onto their money
for as long as they can b/c they make interest on that money (unless it costs
 more to defend the case)  you should distinguish between nominal
dollars & net present value
o Time Value of Money is critical when negotiating
anything
 Make a distinction btwn nominal dollars and net
present value
 The longer you have the money, the more
it’s worth
o Often better to not take a structured settlement –
b/c it’s often better to get the money now
- Ex.) of a structured settlement = “you get paid $100,000 a year for the next 10
years”
o Nominal Value: $1,000,000
o But the Net Present Value: ~$500,000 (you take into account how the
price goes down)
 So if you’re offered $750,000 instead of $100,000 a year for the
next 10 years, you’re better off taking $750,000 now
 You need to make sure your client understands this 
BUT ultimately IT IS STILL THE CLIENT’S DECISION WHAT
THEY WANTS TO DO (whether they take less nominal $s
now, or more nominal dollars that will be worth less over
time via a structured settlement)
o You must be client-centered and explain things to
your clients

- Identifying your Client’s Interests (p. 59)

o See the list on p. 60–62
- For counseling, you need to take into account all the interests, values,
and beliefs, of all the parties involved in the process
- Utilitarianism: the greatest good for the greatest number
- ^ Vs. Deontological (Kantian) Approach
- ^ & ^^ Your job is to take the approach that YOUR CLIENT WANTS (you must
respect your client’s value system)
- In the U.S., we take the principle of autonomy very seriously
- There are INHIBITORS (see p. 65) to client-centered approaches, making a
client-centered approach difficult
o Ex) ego threat, case threat, role expectations, etiquette barrier, trauma,
perceived irrelevancy, greater need
 You overcome these barriers to a client-centered approach by
being (see list under FACILITATORS p. 67):
empathetic/understanding, fulfilling expectations, recognition,
altruistic, extrinsic reward
  You do this by developing a relationship grounded in
trust with the client
o But be careful, because clients pretty much always
lie to you if they have an incentive to do so (SO
DON’T GIVE THEM AN INCENTIVE TO LIE)
 It’s usually bad to have a lying client b/c the
truth usually comes out on the witness stand
anyways
- Preparing for the Interview (p. 76)
o One of the more effective means for getting information out of
someone is by giving them an open-ended question (p. 76) (open-
ended questions allow you to learn more about someone)  OPEN
ENDED-QUESTIONS are a GOOD WAY to PICK A JURY
 E.g. “Tell me about yourself”
o Building Trust = Critical (77)

9/22/14
- p. 79 – 81: FOR EXAM  gives list for what do you look at when
interviewing a witness?
- The concept of “Justice”
o (1) Procedural Justice: means you are being given a fair opportunity
 Takes on different meanings in different cultures
 You need to take this into account when dealing with cross-
cultural/cross-border conflicts
o (2) Distributive Justice: means that the outcomes would be just
 Distribution of Resources: “Who gets what money:
 Resources will work themselves out such that the resource
will always be utilized by the person who will make more
money
 Allocation of Resources: “the way that the money is used”
 YOU NEED TO KNOW FOR THE EXAM ABOUT THE COASE
THEORM
 “If you assume 0 information costs & 0 transaction costs,
the law makes no difference in the way that resources will
be allocated. It does make a difference as to how the
resources will be distributed.”
 Transaction costs = the way that they negotiate
o (3) Retributive Justice: pointing out people who are not living up to
societal ideals & punishing them as a result
o (4) Opportunity Costs:
 MG likes to have 2 reasons before he decides to do anything
- Problem 2-9 (p. 83)—IMPORTANT
o MG says you have to be realistic with your client about the reality of
litigation
o If he still wants to pursue litigation, your options:
  First option: ask for a retainer to get paid upfront because you
know there’s a low chance of winning
 This may encourage him not to go ahead
 Second option: encourage him to negotiate settlement costs
 Third option: tell him to find another lawyer, that you’re not
interested in representing his case
- Mediators, like lawyers, typically charge by the hour (so all you have to sell is
time)

- MODELS OF NEGOTIATION (p. 90)—SEE CHART

o Win (maximizing individual gain)
o Compromise (relationship preserving)
o Problem Solve (maximizing joint gain)
o Allocate Created Resources/Solutions

- Linear Process means a step-by-step process (works very well in straight-

forward, non-complex distributive justice cases; like some contract cases)
o MG doesn’t do this typically: he likes to see the big picture/outcome
beforehand
- Cyclical Process (p. 92): MG doesn’t really get what this means
- Competitive bargaining, Adversarial, Distribute, or Positional
Bargaining (p. 93)

- Thomas’s point on p. 93: Not all conflicts have to be bad; sometimes working
through conflicts have a good outcome

o E.g. US & UK/Eng had big conflict and are now good allies

- Bargaining Strategies
o Competitive Bargaining (96)
o Cooperative Bargaining (97)
o Integrative or Problem Solving Approach (99)
 Carrie Menkel-Meadow (101)
 GOOD ?S TO ASK TO KNOW IF THE MODEL YOU’RE USING
PRODUCES A GOOD SOLUTION (p. 102)
- p. 108: Soft vs. Hard vs. Principled Bargaining Table!

- You always want to try and find ways to increase your bargaining power
o Ex) in Litigation, the Fed Gov’t tries to increase its bargaining power by
upping the litigation costs for the other side
 That’s why you see a lot of settlements in criminal cases—the gov’t
has unlimited resources for this whereas it’s really costly for the
other party
o Thinking of other ways to solve a problem:
  Ex) p. 105  examine diff weights or values given to certain
preferences the parties have for particular things; one
party can increase its utilities without reducing the other’s
9/29
- Positional Bargaining (p. 108) = you decide in advance how you’re going to
bargain
o Soft vs. Hard vs. Principled
 If A is Soft  B will do better by being hard
 If A is Hard & B is Hard  you will do better by both being
Principled
o The position you take will depend on what the other side does
- Choosing Negotiation Approaches ( Think Value creation & Value
distribution)
o Value creation makes “for a bigger pie”  (“Expanding the Pie” discussion
also on p. 170)
o Value distribution: win-win, but there’s always 1 side that wins a little
more than the other
- Prisoner’s Dilemma (p. 114)
o Axelrod concludes that the Tit for Tat strategy seems to do the best
(115, 117)
- Value Creator vs. Value Claimer (MG likes this article, p. 120–23)
- Choosing an Approach—Considerations (p. 125)
o Subject matter
o Content of the issues
o Voluntariness
o Visibility
o Relationship
o Accountability
o Stake
o Routineness
o Power
o Personal characteristics of the negotiator
o Alternatives to negotiations
- People get greater bargaining power by:
o Having more money and making it more costly for the other side
o Delaying things for the other side
o Going to the media and thus adding political pressure
o Winning motions from the court to make it look like you keep winning and
thus like you’re going to win when you litigate the case

CHATPER 4: Skills and Practices in Negotiation

BATNA & RP  p. 131–35
- BATNA (Best Alternative to Negotiated Agreement)
o More conceptual; not an exact number
- RP (Reservation Price)
o An actual number
Ex)
o BATNA might be to not buy a house, whereas the RP would be paying up
to a specific dollar amount for a house
- External Preparation (p. 134)
- Think about Problems 4-7 & 4-8 on pg. 140
- Fairness & Justice in Negotiations (p. 142–44; also on p. 159)
o Structural Fairness
o Process Fairness
o Procedural Fairness
o Outcome Fairness
 Equity
 Equality
 Need
- It’s important to UNDERSTAND THE OTHER SIDE’S POV (p. 149)
- Listening/Mindfulness (p. 155)
- Building Trust (p. 157)
- APPLYING THE PROCESS
o Creating Better Solutions
 Open up your mind; creativity is important in negotiation and
successful problem-solving (162–69)
 Word play (166)
 Six Hats Technique (168)
 Atlas of Approaches (168)
 WWCD (169)
 Flipping or Reversal (169)
- Avoiding Common Mistakes & Errors of Judgment (p. 174)—MG says this
is important
- Behavioral Economics Article (175)
o Loss Aversion
 You have coffee mug you spent $1 on, but when asked how much
you’d sell it for, you charge more than $1
 This an ex. of a common human psychological failure
o
- Overconfidence (178)
- Psychological devaluation (179)

p. 231- Using Mediation in Different Areas:

(1) Labor/Employer & Emoloyee b/c they need to “live together overtime”
(230)
(2) Community
(3) Family/tribe/clan/tight-knit group of people (231)
/(4) civil cases (231)
/(5) cybermediation (231)
READ CARRIE MENKEL-MEADOW’S 6 POINTS ON P. 233: The Future Hope
and Promise of Mediation

MG agrees with Fuller at p. 235:

- MG “cares about a developing a structure that endures longevity and thus
sometimes might ignore norms”

“Rule #1 for Mediator is DO NO HARM (You don’t want to leave the parties worse off
than they were when they started)” -MG

- Landlord-Tenant Case (p. 239)

- Book goes off on the direction that only some cases, not all, are good for
mediation (there’s no “one size fit all” for mediation nor for types of mediators”—
some mediators are better suited for certain kinds of disputes) (~239ish)

- Evaluative Mediator (p. 258): mediator provides direction by giving his or her
own opinion based on his or her experience, training and objectivity
o Good to use in something like a products-liability case
- Facilitative Mediator (258): more of a ref; doesn’t really give his or her
opinion, but rather is more like a cheerleader/ref and helps enhance and clarify
the communications btwn the parties

Narrow vs. Broad Problem Definition, (p. 258)

Narrow Dispute example:
- Where’s the property line?
Broad Dispute example:
- “the party’s interest isn’t really the property line or the kids going over it with
their basketballs, but it’s broader than that”

MG’s APPROACH (diff than empathetic, P. 259)—He calls his approach

STRATEGIC MEDIATION
- (1) Figure out who the PARTIES to the dispute are
o Ask if you should take a narrow view of the parties or a broad
view (e.g. take broad if, say, a gov’t official might have influence
by the issue being litigated)
- (2) ISSUES
o Figure out if we want to take narrow or broad approach
- (3) INFORMATION
o Ask if we have enough information to reach a resolution—
information is a variable
- (4) PROCEDURE
o e.g. what setting would be best to have the mediation in? (a law
office? A boat?)
- MG also says to consider the STYLE of the Meditator
 o There’s certain oratory techniques you can use
o There’s certain persuasion techniques you can use
o DURING ANY COMPLEX KIND OF MEDIATION, YOU SHOULD
PROBABLY USE A COMBINATION OF DIFFERENT TECHNIQUES

10/22
EXAM: McGovern wants you to think about HOW OR IF YOU SHOULD STRUCTURE
THE AGENDA (e.g. should you direct the agenda? Let it be a free-for-all? Say which
style you use & why; you will probably have multiple styles you’ll use throughout the
negotiation)

- Role-Reversal can be used to make it easy for each side to understand what
the other side wants
- Determine what you disclose and what you don’t disclose to the parties
o There are ways to hint at info (“If I had to make an educated guess–
and there are no guarantees—, the Head of the Environmental
Department would decide X,” which is relevant to the parties | “If I had to
make a guess, the other side would accept $3.4 million.”)
- P. 291 & P. 304: BARRIERS TO NEGOTIATION caused by:
o Data conflicts
o Interest conflicts
o Relationship conflicts
o Value conflicts
o Structural conflicts

11/5
- Informed Consent (p. 323)
- Take into account culture
- Confidentiality agreement
o “Belt and suspenders approach”
- 2 cases: Folb v. Motion Pictures Industry & Olam v. Congress Mtg. (p.
341) cases
o it’s important to know the factors cts will take into account when deciding
to breach the confidentiality rule
o Olam (p. 341)
 Held: need for mediator testimony was found to trump
confidentiality privilege.
 Facts: woman alleging that at time she signed MOU she was
suffering from physical pains and emotional distress.
 Issue: whether under Cal law they could compel mediator
to testify
o Folb
 Facts: Fold, in a sexual discrimination suit against
employer, is seeking information from a mediation session
between the Plans ad another employee (Vazquez) whom
 Folb allegedly sexually harassed. Court applied the federal
common law of privilege and denied Folb access to
mediation information and created a federal mediation
privilege.
 To determine whether asserted privilege constitutes such a
public good, the court must consider whether the asserted
privilege is rooted in the imperative need of confidence and
trust whether the privilege will serve public ends; whether
evidentiary detriment caused by exercise of the privilege is
modest; whether denial of the federal privilege would
frustrate parallel privilege adopted by the states.
 Every state in the Union, with the exception of Delaware,
has adopted a mediation privilege of one type or another.
 Court concludes that encouraging mediation by adopting a
federal mediation privilege under FRE501 will provide “a
public good transcending the normally predominant
principle of utilizing all rational means for ascertaining the
truth.”
- How do you enforce a settlement agreement?
o You need the right signatures and sufficient certainty
- Uniform Mediation Act
o Makes uniform state laws
- Good faith requirement (p. 354)
o Tests for Good Faith are on p. 358
o MG likes to deal with this requirement in advance (make sure the parties
that are there want to be there, make sure they have the authority to
make the decisions the mediation requires, etc.)
- MG says most of the big problems that come up in mediation should be thought
about in advance
- MG’s test for whether an outcome is good or not is “if it appears on the NYT the
next day, would my mother be proud of me?” (he calls this the “straight face
test”)

11/10
- Arbitration Act
- p. 369: Ethics in Mediation
- Key #1 Problem = Conflicts of Interest
- Mediator malpractice is hard to do
- p. 383
- Today we do have non-binding arbitration
- Some courts do provide a penalty for not accepting terms offered during
arbitration & making it go to litigation
- Early Neutral Evaluation
o Almost a kind of non-binding arbitration
o It’s done very informally
- Most arbitration is formal
- The idea behind arbitration is that it is cheaper & quicker
- In lots of major cases, arbitration is actually slower and more expensive than
litigation (b/c it’s being treated like litigation), but its major assets:
o There are rules that enable you to collect
- LOOK UP RALPH MICHAEL’S ARTICLE ON THE ENFORCEMENT OF
ARBITRATION
- There are lots of different kinds of arbitration with different processes
o Ex) Baseball Arbitration:
 A form of binding arbitration wherein each of the parties chooses one and only one
number, and the arbitrator may select only one of the figures as the award. In a
baseball arbitration, there are only two possible outcomes. 
o Ex) Nigh Baseball Arbitration:
 The arbitrator doesn’t know the offers of the 2 sides, but he comes
up with how he would value the case and whichever side’s number
is closer to the one that the arbitrator comes up with is the one
the parties go by
o See http://www.jamsadr.com/arbitration-defined/ listing other kinds of
arbitration
- P. 383 “Wise Elders” & Pre-dispute arbitration agreements in Contracts
o Many clauses will have arbitration clauses
- P. 384, references to arbitration made to a consumer K
- It’s unusual to have an even number of arbitrator (for obvious reasons)
- Rules picked, such as AAA, ICC, etc., answer questions on how the arbitration
process & its rules will work to avoid this from becoming an issue
- The National Arbitration Forum no longer exists
o It was responsible for administering the arbitration over credit card debt
o Turned out someone on the Bd of the Forum owned a debt collection
agency  conflict of interest  the Forum went down in flames
- Arbitration Clauses differ from one another—upholding as fair or overturning
as unconscionable clauses
o The more an arbitration clause looks fair to the consumer (the costs are
not unduly burdensome nor is the effort to go though the arbitration
process), it is more likely to be upheld
o If the arbitration clause looks utterly unfair, it can be found to be
unconscionable
- Ask: What’s the best procedure for your client?
- P.387- What’s the Difference btwn Arbitration & Mediation
- Oftentimes arbitrators are paid by the hour to take notes (so they’ll probably
take more notes)
o So you have these disincentives on the part of arbitrators that don’t work
terribly well when it comes to the way in which they process is manage
- Dealing in Virtue article concluded the trend in international arbitration as too
look more like the common law, civ pro procedure of the states (more
adversarial)
- Usually labor arbitrators are specialized (p. 397)
- Online Arbitration (p. 406)
o MG says we should rly pay attention to online mediation and online
arbitration because it will become more and more popular in the future

Exam Questions (4 pgs? double-spaced, full sentences, 4500 words total) –bring
back in a hard copy form:
1 MEDIATION QUESTION – DESIGN A MEDIATION process based on facts
- Describe what your process would be (e.g. setting, etc.)
- Decide what would be the best mediation approaches to use based on the
context
- Draft a mediation approach & why (e.g. why didn’t we pick other
approaches?)

2 He will ask us to draft an arbitration clause after giving us a fact situation

- Draft an arbitration clause & why

8 hrs take home 4500 words

Differences btwn Arbitration & Mediation:

(1) Behavioral differences
- ppl that are parties to mediation like it better because they can tell their
stories in an unconstrained way and parties have more ownership over the
outcome
- but in arbitration  more efficient for the arbitrator
o baseball arbitration: must pick one or the other side—nothing in
between
o night baseball arbitration  you pick a middle standpoint but
whichever side is closer will be what you end up with

- A neutral arbitrator knows at the end of the day that he/she will decide the
case
o So, the party arbitrator tries to convince the neutral arbitrator to lean
closer to the outcome that’s best for its side
 Party arbitrator makes sure their arguments/side/voice are
being heard

- Arbitrators Power is Derived from a Contract  VALIDITY OF

ARBITRATION CLAUSES & CONTRACT? (p. 453)
o Claim of fraud in the inducement within the clause itself  Federal
determination
o Validity of the contract as a whole  Arbitrator decides this
- Ex)
 o Unconscionability of the provisions of the clause itself is up to the
Court to decide
 Courts are mixed on whether the clause can divest this power
to the arbitrator to decide
- At the end of the day, if SCTOUS doesn’t want class actions it will say so. End
of story.
- SCOTUS has held that unless both sides agree that the class action
approach is applicable, then you can’t have it
o And virtually never will you have a D agreeing on a class action
arbitration
 So as a practical matter, there really is no such thing as
class action arbitration
- Many arb clauses say “there will be NO CLASS ACTIONS & NO PUNITIVE
DAMAGES” (p. 460)
- Vacating Arbitral Awards (p. 462)
o Note: It’s really, realllllly difficult to vacate an arbitral award
 Reason: this process is supposed to be faster & easier & more
efficient  if appeals were allowed, why bother even having
this process?
- Arbitrations are afforded the same scope of immunity that judges’ are entitled
(p. 468: Suing Arbitrators)
- Mandatory Arbitration: Policy Issues (p. 469)
o W/ Republicans in the house & senate, MG thinks that there will be an
expanded scope of what can be subject to mandatory arbitration

12/3
EXAM QUESTIONS!!! (4500 words total limit)
(1) Draft an Arbitration Clause & why you did and why you didn’t &
identify any legal issues that pop up
o explain the approach you took and why (“I adopt the
expedited triple A rules & not the general AAA rules & here’s
why…” “I think this is a unique situation in which we need to
tailor the rules and here’s why…”)
o It takes a lot of time to take some rules from one organization
and other rules from another organization when deciding the
rules to include within the arb clause than just adopting one
as a whole. You need to know the applicable provider,
applicable law, and what triggers the arbitration, but its too
costly, time-consuming and difficult to pick and choose rules
generally. It’s also worse for the relationship of the parties to
argue through which rules to adopt for a long length of time.
o
(2) Mediation Question
 o Pt 1: How would you go about facilitating/mediating an ADR
procedure (HOW WOULD YOU GO ABOUT DECIDING HOW TO
CREATE THE MEDIATION SETTING, ETC.)
o Pt. 2: there’s a sample mediation there & explain how you’d
change it and why (WHAT DO YOU THINK THE PROCEDURE
SHOULD BE AND WHY)
o Establish in an opening statement the rules of the game
FOR ARBITRATION & MEDIATION to make sure
everyone understands what the rules are (see p. 488
for a good example of an opening statement a mediator
might make!)

- There’s a sample local rule & how you’d change it and why
- P. 481: The Proposed Arbitration Fairness Act
- P. 483: Arbitration: Skills, Practices, & Ethics
o Rulings on discovery for an arbitrator:
 MG says the most important aspect is doing so quickly

Establish in an opening statement the rules of the game FOR ARBITRATION &
MEDIATION (see p. 488 for a good example of an opening statement a mediator
might make!

- MG likes arbitrators to give a decision without explaining it but some parties

like an explanation
- Arbitration is going to be a little more informal
- Arbitrators need to balance the ability/time it takes to hear the sides’ cases
with the economics of it
- The costs and fees of arbitration can raise ethical concerns if you’re billing for
“phantom hours”
- Commonwealth Coatings Corp. v. Continental Casualty Ethical case ([.
501)
- Standard for arbitrators: the “appearance of impropriety”
- Triple AAA Code of Ethics (p. 506)
- A problem with things like a mini-trial and private jury trials is that people
spend more time debating little things here and there but don’t just adopt
one
- Generally in the consumer context, arbitration is private and
confidential, so it does not have precedential value. One of the
things the defendants wants is to keep it private in case they lose.