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Exam 4: Alternative Dispute Resolution

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Question 31

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[Sexual harassment ADR] Naomi works at a fast-food restaurant which is owned by an international company located in Mexico. Naomi is very angry with her supervisor, who has been making inappropriate sexual comments to her and other employees. Naomi decides to sue and retains a lawyer, Dominic. Dominic talks with the owners of the restaurant and is informed that Naomi signed an agreement to mediate and also to arbitrate any claims. Naomi informed Dominic about other employees who entered into such agreements and later complained of harassment. Dominic promises her that under federal law, he is legally entitled to get copies of all documents used during any other mediations and arbitrations and that he is also entitled to get detailed information regarding what was said and agreed upon by them. Dominic also tells Naomi that, while he is not going to bring it up now, if they so choose, Dominic and Naomi can avoid the arbitration agreement because under a new federal law, such agreements cannot be enforced if one of the companies involved is internationally based. He also tells Naomi in response to her question about the possibility of mediation in her case to forget it, because mediation is pretty much the same thing as arbitration. Dominic tells Naomi that an option is to arbitrate and, if the outcome is bad at arbitration, file a court action in federal court. Dominic says that the federal court judge would not consider an arbitrator's decision in making a determination. -Can Dominic obtain information regarding what occurred at previous mediations and arbitrations if the Uniform Mediation Act and the Federal Arbitration Act apply?

A) Under federal law, Dominic is entitled to all documents introduced at both mediations and arbitrations, and he can also get copies of statements, but only for proceedings at which a court reporter was present.
B) Under federal law, in regard to mediations, Dominic can get copies of any written documents reviewed but not accounts of statements; and he cannot get any information regarding previous arbitrations.
C) Under federal law, Dominic can get accounts of statements but not copies of written documents in regard to both mediations and arbitrations.
D) Under federal law, Dominic can get copies of documents but not accounts of statements in regard to both mediations and arbitrations.
E) Federal law does not entitle Dominic to any information introduced by the parties during previous mediations or arbitrations.

F) D) and E)
G) All of the above

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Question 32

Multiple Choice

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Lena receives notice of a lawsuit that indicates the suit is in the federal district court. She has heard about the Alternative Dispute Resolution Act and has been told she is required by law to use a form of ADR before she goes to court. Is this true?

A) Yes, Lena must agree to mediation which is required by law in all federal district courts.
B) Yes, Lena must agree to arbitration which is required by law in all federal district courts.
C) Yes, Lena could pick either mediation or arbitration because some form of ADR is required by law in federal district court.
D) Under the act, Lena must consider the use of ADR, but courts are not uniform in their implementation of the act.
E) No, Lena is not bound to follow ADR and can go straight to trial and cannot be forced into any ADR process by law.

F) All of the above
G) C) and D)

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Question 33

Multiple Choice

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Lowell and Nadine have a dispute in federal district court. Lowell indicates that since their dispute does not involve a clause in their contract that mandates any form of ADR, he and Nadine can choose whether to participate in an ADR process or not. Is this true?

If you are a party to a dispute and determining which dispute method is best, you may want to ask if you want to keep the dispute private.

What is the position of the Equal Employment Opportunity Commission (EEOC) on mediation?

In order to perform arbitration, a person must be a lawyer.

[Home insulation] Jae and Lydia ran a home insulation company for several years. They, however, encountered a dispute regarding the allocation of profit and agreed to discontinue their business. They could not agree on a number of issues involving not only profits, but also winding up the business, disposing of equipment, and other matters. They agreed to hire an arbitrator to settle their disputes. Jae suggested that they use a local lawyer named Alan to arbitrate the matter, and Lydia agreed. Lydia had some medical problems and requested that the arbitration be postponed for a short time. Jae objected to her request. Alan would not agree to Lydia's request for a postponement, stating that any arbitration proceeding must be heard within 30 days and that the time period was nearly over. Alan conducted the arbitration hearing. He refused to hear any evidence from any witnesses, explaining that he only had the authority to hear testimony from Jae and Lydia. Therefore, Lydia was not able to present testimony of a property appraiser she had hired. Alan proceeded to rule in favor of Jae on all counts. Lydia was very discouraged and discussed the situation with her friend Mia. Mia said "My goodness! Didn't you know that Alan and Jae play golf together every week, that Jae is married to Alan's cousin, and that Jae has loaned money to Alan in the past?" Lydia immediately called Alan and asked him about his connection with Jae. Alan acknowledged those connections. He told Mia, however, that he was perfectly fair and that there was nothing she could do. The Federal Arbitration Act applies. -Regarding Alan's refusal of a continuance based upon Lydia's medical problem, which of the following is true?

[Home insulation] Jae and Lydia ran a home insulation company for several years. They, however, encountered a dispute regarding the allocation of profit and agreed to discontinue their business. They could not agree on a number of issues involving not only profits, but also winding up the business, disposing of equipment, and other matters. They agreed to hire an arbitrator to settle their disputes. Jae suggested that they use a local lawyer named Alan to arbitrate the matter, and Lydia agreed. Lydia had some medical problems and requested that the arbitration be postponed for a short time. Jae objected to her request. Alan would not agree to Lydia's request for a postponement, stating that any arbitration proceeding must be heard within 30 days and that the time period was nearly over. Alan conducted the arbitration hearing. He refused to hear any evidence from any witnesses, explaining that he only had the authority to hear testimony from Jae and Lydia. Therefore, Lydia was not able to present testimony of a property appraiser she had hired. Alan proceeded to rule in favor of Jae on all counts. Lydia was very discouraged and discussed the situation with her friend Mia. Mia said "My goodness! Didn't you know that Alan and Jae play golf together every week, that Jae is married to Alan's cousin, and that Jae has loaned money to Alan in the past?" Lydia immediately called Alan and asked him about his connection with Jae. Alan acknowledged those connections. He told Mia, however, that he was perfectly fair and that there was nothing she could do. The Federal Arbitration Act applies. -Regarding Alan's refusal to hear testimony other than that presented by Jae and Lydia, which of the following is true?

Did Alan act properly in hearing the dispute?

[Jade Shoes] Coleman owns a sporting goods store and has purchased top-quality, brand-name athletic shoes from Jade's Shoe Distribution for many years, but they have no written contract in place. Last month, Coleman learned that the latest shipment from Jade's are not authentic, brand-name shoes but instead a knock-off brand that costs a fraction of the price Coleman pays. Coleman cannot sell these shoes because his customers would know the difference, and Coleman demanded Jade refund him. Jade sent Coleman a written request for arbitration within thirty days. In response, Coleman called Jade, threatening to file a lawsuit against Jade and exposing her company as a fraud. Jade laughs, saying Coleman is required to arbitrate their dispute within thirty days. -Which of the following is not considered an advantage of ADR over traditional litigation as set out in the text readings?

A benefit of arbitration is which of the following, according to the text?

ADR is a process done only in the U.S., not in foreign countries.

Which of the following is true regarding the form of ADR known as "negotiation"?

A ________ allows the parties to submit a specific dispute involving a contractual provision to arbitration if a contract does not provide for arbitration.

Many federal district courts use ADR to resolve disputes within cases. Which form of ADR is most often used?

What is the arbitrator's decision called?

Which of the following is false about a private trial?

In the text's case Circuit City v. Saint Clair Adams, which addressed whether arbitration clauses in employment contracts are enforceable, what was the result at the U.S. Supreme Court level?

One type of ADR method is med-arb.

If mediation is unsuccessful, the parties can turn to litigation, however, nothing said during the mediation can be used in the litigation because the mediation process is confidential.