BS

Chapter 2 BLAW Flashcards

📘 Chapter 2: Disputes and Dispute Settlement

Learning Outcome: Understand the theory, practice, and laws behind dispute resolution.

🔹 Section 2.1: Negotiation

Flashcard 1
Q: What is negotiation in legal terms?
A: A process where parties with differing preferences allocate resources and make joint decisions without external help. It is an informal discussion, sometimes without attorneys, aiming for mutual resolution.

Flashcard 2
Q: What are the two types of negotiation? Provide examples.
A:

  • Dyadic Negotiation: Between two individuals (e.g., neighbors disputing property lines).

  • Group Negotiation: More than two parties involved (e.g., a third neighbor joins the dispute).

Flashcard 3
Q: What are the two main goals of negotiation?
A:

  • Relational Goals: Building or maintaining a relationship.

  • Outcome Goals: Maximizing one’s gain (win-win or win-lose).

Flashcard 4
Q: What is the difference between win-win and win-lose negotiation?
A:

  • Win-win (Integrative): Focuses on mutual benefits (e.g., supply chain partnerships).

  • Win-lose (Distributive): Zero-sum or “fixed pie” mentality—one's gain is another's loss.

Flashcard 5
Q: Describe the 5 negotiation styles from the Thomas-Kilmann Conflict Mode Instrument.
A:

Style

Concern for Self

Concern for Others

Description

Forcing

High

Low

Competitive; harms relationships

Collaborating

High

High

Seeks mutual gain

Compromising

Moderate

Moderate

Finds middle ground

Avoiding

Low

Low

Avoids conflict, no resolution

Yielding

Low

High

Accommodates others, possibly due to power imbalance

Flashcard 6
Q: Give a real-world case where negotiation avoided litigation.
A: Apple in China resolved warranty complaints with humility and negotiation—Tim Cook issued an apology and adjusted policies to avoid litigation.

Flashcard 7
Q: What laws govern arbitration and negotiation in the U.S.?
A:

  • Federal Arbitration Act (FAA): Enforces arbitration agreements.

  • Uniform Arbitration Act (UAA): Standardized framework adopted by ~35 states.

  • States may have their own nuanced negotiation laws.

🔹 Section 2.2: Mediation

Flashcard 8
Q: Define mediation.
A: A process where a neutral third party (mediator) facilitates resolution between disputing parties without imposing a decision.

Flashcard 9
Q: What are the advantages and disadvantages of mediation?
A:

  • Advantages: Few rules, customizable, win-win solutions, cost-efficient, confidential.

  • Disadvantages: Mediator fees, no sanctions or deadlines, no guaranteed resolution.

Flashcard 10
Q: Who typically serves as a mediator?
A: Trained individuals in conflict resolution—may or may not have subject-matter expertise.

Flashcard 11
Q: What is the cost benefit of mediation (Chevron example)?
A: Internal mediation cost ~$25,000 vs. ~$700,000 in outside legal services.

Flashcard 12
Q: What are the steps in a mediation process?
A:

  1. Mediator’s Opening Statement

  2. Parties’ Opening Statements

  3. Joint Discussion

  4. Private Caucus

  5. Joint Negotiation

  6. Closure

Flashcard 13
Q: What ethical frameworks apply in mediation?
A:

  • Consequentialist Ethics: Decisions based on likely outcomes.

  • Deontological Ethics: Morality-based decisions regardless of outcomes (e.g., Kant’s categorical imperative).

Flashcard 14
Q: What are modern mediation trends?
A:

  • E-Mediation: Online platforms (e.g., eBay).

  • Canine-Assisted Mediation: Therapy dogs used to reduce emotional stress.

🔹 Section 2.3: Arbitration

Flashcard 15
Q: What is arbitration?
A: A private process where a neutral arbitrator hears evidence and issues a binding or non-binding decision.

Flashcard 16
Q: How does arbitration differ from mediation?
A:

  • Arbitration: Arbitrator acts like a judge, may impose a binding award.

  • Mediation: Mediator facilitates, but parties reach decision.

Flashcard 17
Q: What are the types of arbitration?
A:

Type

Description

Voluntary

Parties choose to arbitrate

Involuntary

Imposed by law/contract

Binding

Final decision, not appealable

Non-binding

Suggestive, not enforceable unless accepted

Flashcard 18
Q: What are the business uses of arbitration?
A:

  • Labor Disputes: Interest or grievance arbitration.

  • Business Transactions: B2B and B2C contract disputes.

  • Property Disputes: Civil (e.g., real estate, IP), not criminal.

Flashcard 19
Q: What are ethical issues with arbitration?
A:

  • Forced Arbitration Clauses: Often in consumer/employment contracts.

  • May waive rights to sue, appeal, or join class actions.

  • Seen as favoring corporations over individuals.

Flashcard 20
Q: What happens in arbitration procedure?
A:

  1. Select arbitrators (1 or 3 depending on agreement).

  2. Present evidence.

  3. Arbitrator renders an award.

Flashcard 21
Q: What is Baseball Arbitration?
A: Arbitrator must choose between final offers from each side. Encourages reasonableness.

Flashcard 22
Q: What are the types of arbitration awards?
A:

  • Bare Bones: Just the decision.

  • Reasoned: Includes rationale and amount.

  • Confirmation: Award becomes enforceable judgment.

Flashcard 23
Q: How are arbitration awards enforced?
A:

  • Writ of Execution: Law enforcement collects assets.

  • Garnishment: Seizing wages or accounts (limits apply).

  • Liens: On property; prevents sale until resolved.

🏛 Court System Overview (Chapter 2 Presentation Notes)

Flashcard 24
Q: What is judicial review and what case established it?
A: The power of courts to declare laws unconstitutional. Established in Marbury v. Madison (1803).

Flashcard 25
Q: Define jurisdiction.
A: The legal authority of a court to hear and decide a case (juris = law, diction = to speak).

Flashcard 26
Q: What are the types of jurisdiction?
A:

  • Personal (In Personam): Over the person.

  • Property (In Rem): Over the property.

  • Subject Matter: Over the legal topic (general or limited).

Flashcard 27
Q: What is “long-arm jurisdiction”?
A: States can exercise jurisdiction over non-residents with sufficient “minimum contacts.”

Flashcard 28
Q: What is venue?
A: Geographic location where the trial should be held—typically where the injury occurred.

Flashcard 29
Q: What is standing to sue?
A: The party must have a legal injury and a sufficient stake in the controversy.

Flashcard 30
Q: What are the levels of the court system?
A:

  • Trial Courts: Original jurisdiction.

  • Appellate Courts: Review legal errors.

  • Highest Courts: Final say on state law.

Flashcard 31
Q: What is the Federal Court System structure?
A:

  1. U.S. District Courts

  2. U.S. Courts of Appeal

  3. U.S. Supreme Court (final arbiter, hears cases by writ of certiorari)

Flashcard 32
Q: What is discovery in litigation?
A: Process of obtaining evidence: depositions, interrogatories, electronic discovery.

Flashcard 33
Q: What are pretrial and trial procedures?
A:

  • Pretrial: Motions, discovery, jury selection (voir dire).

  • Trial: Opening, evidence, expert witnesses, closing, verdict.

Flashcard 34
Q: What are post-trial options?
A:

  • Motion for J.N.O.V.: Judge overrules jury.

  • Motion for New Trial: If jury error is suspected.

  • Appeal: Based on legal errors.

Flashcard 35
Q: What is ADR and what are its types?
A:
ADR = Alternative Dispute Resolution.

  • Types: Negotiation, mediation, arbitration, ODR.

  • Providers: AAA, BBB, JAMS, online platforms.