mgt 220

alternative dispute resolution

ways of solving an issue with the intent to avoid litigation – Negotiation – Meditation – Arbitration

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negotiation

process by which parties with nonidentical preferences allocate resources through interpersonal activity and joint decision making

typically the first step to the alternative dispute resolution

dyadic negotiation

two individuals interacting with one another in an attempt to resolve a dispute – What is for dinner – What movie to watch

group negotiation

more than two individuals or parties (tends to be more complex, time-consuming, and challenging to resolve) – What your group project topic will be – Where to go on spring break

relational goals

focused on building, maintaining, or repairing a partnership, connection, or rapport with another party

outcome goals

concentrate on achieving certain end results

integrative negotiation

“win-win”

distributive negotiation

“win-lose”

zero sum negotiation

“win-lose”

Thomas-Kilmann Conflict Mode Instrument (TKI)

questionnaire that provides a systematic framework for categorizing five broad negotiation styles

– __**Forcing**__ – high concern for self, low concern for other party – __**Collaborating**__ – high concern and care for both itself and other party – __**Compromising**__ – parties share some concerns for both themselves and the other party – __**Avoiding**__ – low concern for itself and for the other party – __**Yielding**__ – low concern for self, high concern for the other party

Federal Arbitration Act

\-A national policy that favors arbitration and enforces situations in which parties have contractually agreed to participate in arbitration

– A party who has decided to be subject to binding arbitration relinquishes its constitutional right to settle their dispute in court

– Allows parties to confirm their awards

Uniform Arbitration Act

-Provides a uniform approach to the way states handle arbitration

– Only been adopted in 35 states

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mediation

A method of dispute resolution that relies on an impartial third-party decision-maker, known as a mediator, to settle a dispute

plaintiff

(π) – the party initiating suit

defendant

(Δ) – the party accused of wrongdoing

steps of mediation

1. Mediator’s Opening Statement: introduce yourself and explain goals of
mediation
2. Opening Statements of π and Δ: both parties speak, without being
interrupted.
3. Joint Discussion: mediator tries to get the two parties to speak to one
another and will guide the discussion toward a mutually amicable solution.
4. Private Caucus: each party meets and speaks privately with the mediator.
5. Joint Negotiation: the parties are joined again in the same room, and the
mediator presents any newly discovered insight to guide them toward an
agreement.
6. Closure: an agreement is reached, or it is determined they cannot agree.
Arbitration

arbitration

The private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments

arbitrator

an individual who is responsible for making a decision on how to resolve a dispute and who has the ability to decide on an award, or a course of action that the arbiter believes is fair, given the situation

Voluntary Arbitration

the disputing parties have decided, of their own accord, to seek arbitration as a way to potentially settle their dispute

involuntary arbitration

forced upon them by an outside party (such as being required to attempt arbitration before resorting to litigation)

binding arbitration

the decision of the arbitrator is final, and except in rare circumstances, neither party can appeal the decision through the court system

non-binding arbitration

the arbitrator’s award can be thought of as a recommendation

bare bones arbitration award

arbitrator states his or her decision

reasoned arbitration award

award lists the rationale behind the decision and award amount

writ of execution

a court order that directs law enforcement personnel to take action in an attempt to satisfy a judgment eon by the plaintiff

garnishment

a court order that seizes the money, typically wages, to satisfy a debt

liens

gives the entitled party in a judgment the right to seize the property of another to satisfy a debt

**litigation**

A process where two disputing parties have their issue(s) heard by a judge or a jury, who decides the outcome

prosecution

part initiating the suit, which represents the people within a state or federal government

pro se litigant

an individual who represents themself

first duty attorneys

the administration of justice – They owe their clients zealous advocacy, but the advocacy is constrained within the bounds placed on them as an officer of the court

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Jury Duty

determine the truth in any situation – Who said/did what, why, and when -Group of unbiased citizens who get to hear both sides of a case and decide who wins

grand jury

a group of citizens convened by the prosecution in serious criminal cases to determine (1) whether probable causes exists to believe that a crime has occurred, and (2) whether it’s more likely than not that the defendant committed the crime

petit jury

hears both sides of the case and determines guilt or innocence

issues with jury

Hard to find people who haven’t heard/seen anything about a case – Burden placed on jurors’ personal lives • No legal requirement that an employer continue to pay a worker on jury duty – Composition of the jury • Professions Automatically Exempt – Active Duty Military – Police Officers – Firefighters – Public Officers

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ripe

on time

not yet ripe

too early

moot

late

subject matter jurisdiction

the legal authority to hear and decide a case or controversy

personal jurisdiction

the power of the court to compel the parties to appear in court – Requires parties to have minimum contacts with the state where the case is filed

international shoe co. v. Washington

HELD: a corporation may be subject to the jurisdiction of a state court if it has “minimum contacts” with that state. – Lack of minimum contacts violates the nonresident Δ’s constitutional right to due process and “offends traditional notions of fair play and substantial justice.” – Incorporated in the State – Have a physical location in the State – Do business in the State

long arm statutes

set forth the procedure by which out-of-state defendants can be required to appear before a court

service of process

the process by which a Δ is notified that it is being sued

motion

a request to the court to rule on an issue or claim

motion for default judgement

π requests court to enter judgment in its favor because the Δ did not show up and defend its case

Motion to Dismiss for Failure to State a Claim

Δ argues that even if everything in the complaint is factually true, π is not entitled to legal relief

Motion for Judgment on the Pleadings

asks the court to determine whether a genuine issue of material fact exists that allows the case to proceed

motion for summary judgement

asks the court to enter judgment on a party’s favor instead of trying the case

statue of limitations

requires lawsuits to be brought within a specified period of time

affidavit

a written statement made under oath

process of a trial

In civil litigation, over 90% of cases filed are resolved or settled before trial Step 1: select a jury (voir dire) Step 2: opening statements Step 3: examination Step 4: closing arguments Step 5: jury instructions Step 6: jury deliberates Step 7: verdict (or mistrial) Step 8: judgment

Res Judicata

once a dispute is litigated and resolved, the parties cannot relitigate the issue again

corporate social responsibility (CSR)

The idea that a business is given the opportunity and privilege to make the world a better place – Donation of funds – Volunteerism – Implementation of Environmentally Friendly Policies

first national constitution

articles of confederation

federalism

a political system that divides authority to govern between the state and federal governments

enumerated powers

powers reserved to the federal government in Article 1, Section 8

tenth amendment

powers reserved to the federal government in Article 1, Section 8

concurrent power

powers that are shared by both the federal and state government

legislative branch

congress makes the law

executive branch

president carries out the law

judicial branch

supreme court interprets the law

marbury v. madison

Arguably the most important decision in American constitutional law • Established U.S. federal judges’ authority to review the constitutionality of Congress’s legislative acts – Did not invent or create judicial review – Judicial review was widely accepted in Colonial America

federal preemption

if a state law conflicts with the U.S. Constitution, the state law is declared invalid

Supremacy Clause

created federal system of preemption

commerce clause

Grants Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

police power

the residual powers granted to each state to safeguard the welfare of their inhabitants

Dormant Commerce Clause

limitation on the authority of states to regulate in areas that impact interstate commerce

bill of rights

first ten amendments

\-First Amendment: free speech, press, religion, and peaceable assembly • Second Amendment: right to bear arms • Third Amendment: government cannot quarter soldiers in private houses • Fourth Amendment: government can only issue warrants with probable cause & protects US citizens from unwarranted search & seizure • Fifth Amendment: establishes rights of due process • Sixth Amendment: provides citizens with the right to an expeditious public trial, the right to an attorney, and the right to an impartial jury • Seventh Amendment: right to a trial by jury for common lawsuits involving monetary value of $20 • Eighth Amendment: prohibits cruel and unusual punishment • Ninth Amendment: rights in Bill of Rights not remove other rights • Tenth Amendment: reservation of authority to states

Corporate Political Speech

any speech used to support political agendas or candidates

Unprotected Speech

obscenities, defamation, and slanderous speech

Commercial Speech

conveys information pertaining to sale of goods and services

Pervasive-Regulation Exception

administrative agencies may conduct warrantless searches of businesses attached to industries that have a long history of pervasive regulation

due process law

offers extensive protection to commercial enterprises – States that the government cannot take an individual’s life, liberty, or property without due process of law

Substantive Due Process

laws that will deprive an individual of their life, liberty, or property must be fair and not arbitrary

Procedural Due Process

governments must use fair procedures when depriving an individual of their life, liberty, or property

Takings Clause

when the government seizes private property for public use, it is required that the owner be paid just compensation

Privilege Against Self-Incrimination

\-Only applies to sole proprietorships that are not legally distinct from the individual who owns them – Custodians and agents of corporations do not enjoy this privilege

white collar crime

crimes committed by business professionals that are characterized by deceit, concealment, or violation of trust…generally fraud

ponzi schemes

investing scams that promise investors low-risk investment opportunities with a high rate of return

larceny

a person unlawfully takes the personal property of another person or a business

embezzlement

a person has been entrusted with an item of value and then either (1) refuses to return it, or (2) does not return the item of their own free will

racketeering

loan-sharking, money laundering, blackmailing, etc

mens rea

the criminal, guilty, or “wrongful” mind

actus rea

the criminal, guilty, or “wrongful” act

civil law

addresses behaviors that cause an injury to the private rights of individuals in areas such as contracts, property, and the person

malpractice

professional negligence

tort

a civil wrong to a person or property other than a breach of contract – Damage/injury could be the result of a criminal action – Criminal element of the conduct is not tried in the civil lawsuit – Finding of liability does not necessarily translate to guilt in a criminal case

tortfeasor

the person committing the civil wrong (ultimately becomes Δ)
• Three Types of Torts:


1. Intentional Torts
2. Negligence
3. Strict Liability
• Elements of a Tort:
– Damages
– Compensation

negligence

the failure to exercise the standard of care that a reasonably prudent person could have exercised in a similar situation

strict liability

liability without fault – Irrelevant how carefully Δ acted

Abnormally Dangerous Activity Standard

assigns responsibility when an \\ individual engages in some form of dangerous activity, even if care is taken to avoid the mishap \\ – Using Dynamite \\ – Keeping Wild Animals \\ – Using Nuclear & Radioactive Materials

agreement

a mutual understanding between two or more parties about their rights and duties toward each other

contract

a legally enforceable agreement between two or more parties – When broken, or breached, the injured party can seek damages

bilateral contract

both parties make a promise of performance

unilateral contract

one party makes a promise that the other party can accept only by doing something

elements of a contract

\-Offer: a conditional promise to do or refrain from doing something now or in the future

\-Acceptance: an implied or express act that shows willingness to be bound by the terms of an offer

\-Consideration: the bargained-for exchange of something of value that shows the parties intend to be bound by the contract

\-Capacity: mental state of mind sufficient to understand that a contract is made and that it has legal consequences -

\-Legality: the promises must be legal

lapsed offer

an offer that is no longer valid because a reasonable time to accept it has expired

acceptance

an implied or express act that shows willingness to be bound by the terms of an offer

counter-offer

If an acceptance changes, adds, or modifies terms of the offer

mutual assent

offer+acceptance