Suitability/Unsuitability to arbitration as opposed to court litigation.

Arbitration Compared

Understanding arbitration requires us to be able to compare it to the two processes bracketing it on the ADR spectrum: litigation on the one hand, and mediation on the other.

In this forum, I’m going to ask you to relate to a situation, and to first discuss its suitability/unsuitability to arbitration as opposed to court litigation, and then to discuss its suitability/unsuitability to arbitration as opposed to mediation. Regarding the arbitration/litigation discussion, make sure to relate to the material I sent to you. (in particular, Prof. Pearlstein’s chapter and the presentation); for the second part regarding arbitration/mediation, you may want to add on issues discussed in last week’s chapter on mediation.

It might be easy, at this point in the course to fall into the trap of explaining why mediation is or is not suitable process for the dispute you are discussing. This forum is not about mediation, so please put on your arbitrator cap and keep this as the perspective through which you approach your discussion.]

Base, your analysis to this scene from a TV show.

1. Very Important instruction. Please, writer put page numbers to all citation you will be taking from the text books. Make sure when I or instructor looks it up We will find it in the book. Use one and half page.

2. Please, respond to discussion one, Use half page for it. Let her know why you agree with her story. Use half a page please, Include citation and page.

Thank you.

Reference

https://vimeo.com/29554489

Fisher, R., Ury, W. and Patton, B. (1991). Getting to Yes. Penguin Books. Edition/Year:2nd edition/1991

ISBN:0140157352

Macfarlane, J., Manwaring, J., Zweibel, E. & Hamilton, W.H.(2011). Dispute Resolution . Emond Montgomery Publications Edition/Year:3rd Edition /2011 ISBN:978155239370

Discussion 1

DISAGREEMENT OVER MONEY FOR KIDDOS

A couple of weeks ago, I posted a story about my mediation with my ex-spouse regarding some costs related to our children. We have a court decree from 9 years ago that delineates the split of out-of-pocket medical costs. I had incurred medical expenses for the children and my ex-spouse was egregiously behind in reimbursing me for his $700 share of those costs. He argued he had also incurred $800 in “extracurricular” basketball costs for my son, to which the decree only vaguely suggests discussing and agreeing to a reasonable split prior to incurring an extracurricular expense. In other words, there is not a solid legal agreement to split costs on non-essentials. We met and ultimately agreed that he would not reimburse me for the medical expenses but he would also recognize he had incurred the basketball costs at his own expense and let our son know that I had covered the basketball team dues.

Suitability for arbitration versus litigation

More history…I had been through extensive litigation with my ex-spouse. Understandably, the divorce and custody dispute was litigated but later appealed (p. 525). And, yet again, we appeared in front of the judge several years ago when he was $40,000 behind on child support. Yes, that happened. Yes, it is a miserable experience. Litigation is ridiculously expensive and very time-consuming and, as MacFarlane indicates, it occurs on the court’s time and schedule (p. 525). The last time we appeared for his contempt charge on delinquent support, he actually had an out-of-town trip planned but the Court refused to reschedule the hearing and he was forced to cancel his vacation.

In our most recent dispute over costs, it would have been much better suited to an arbitration process versus a litigation process. Litigation costs would have easily exceeded the value of the funds in question. Luban discusses the “public-life” conception (p. 551) and I could have rationalized litigation as a choice had I wanted to highlight the public significance of a disputant’s failure to abide by court order. However, I was also operating in the context that he had been previously briefly jailed for contempt as part of the delinquent child support litigation. So, that “making a point” for public awareness significance was over and done. There was also no gain to litigate in the realm of creating precedent (p. 550) because, frankly, I just wanted to pay the medical bills and did not care whether a District Court could add a single blip to the body of case law precedent.

Suitability for arbitration versus mediation

Our dispute may have been suitable for either mediation or arbitration. Actually, many of our past disputes may have been suitable for either approach. Arbitration may have caused fewer hard feelings when we just wanted a division that was fair and equitable when we each felt like the other was trying to get more than what was fair. Interestingly, negotiations continue in the realm of who pays for a child’s car (or, more costly, their car insurance) or who gets the cell phone bill. Though it was not necessary to arbitrate in the above scenario, I can envision many cases where we each dig in our heels and refuse to move. In particular, the baseball arbitration would be an appealing approach because it incentivizes each of us to be reasonable in our proposals (p. 524) which may go a long way to maintaining a relationship. (Side note: My personal opinion is that final offer arbitration should be used more often in divorce cases because it DOES force parties to be reasonable when emotions prevail.)

Mediation would be nice if freely available but, had we not come to an agreement, I do not think mediation would have facilitated an agreement. Generally, our issue is that both of us hear each other out but find our interests and values are too separate to find a middle ground. When that happens, we want someone to decide – which is why we ended up in litigation three times. The Courts and disputants would be well-served to have a mandatory arbitration process prior to litigation.

Finally, with regard to my side note above, our litigious past may not have been something that could have been arbitrated. Out of curiosity, I did a little research and the Courts tend to maintain that their role is to act in the child’s best interest and as their voice. Therefore, the parents cannot arbitrate a child support agreement – nor, in many cases, a custody agreement. The Courts see this as the arbitrator exceeding their powers (p. 541) and it is a matter of public policy (Morgan, 2004).

Morgan, L. (2004). Arbitration of child custody/support. Retrieved from https://www.famlawconsult.com/archive/reader200407.html

Samples. 1

I chose to discuss the Seinfeld episode as it relates to arbitration, litigation and mediation.

Suitability/Unsuitability to arbitration as opposed to court litigation

There are four similarities between arbitration and court litigation. First, they are both adversarial. This means parties are trying to prove each other wrong and prove that they themselves are right (Macfarlene, p. 524) In this instance Elaine is trying to prove that she is the rightful owner of the bike because she didn’t literally mean, “I am going to give this bike to the next person who can make this pain go away!” Kramer believes he is the rightful owner because he and Elaine had a verbal contract that should be fulfilled as he temporarily stopped her neck pain. Second, they are both adjudicative. This means a third party neutral conducts an adjudicative process that results in a decision (Macfarlane, p. 524) Here, Newman was the third party neutral. He had not previously heard the story and it doesn’t appear that he is a greater friend with one of the parties. The third similarity is there are remedies (Macfarlane, p. 524) In this case, Kramer ends up receiving the bike. Lastly, the parties agree that the decision handed out by the third party is final and binding (Macfarlene, p. 524)

Although there are several similarities, there are also differences between litigation and arbitration. Litigation is a government run process, whereas arbitration is private and more relaxed (Macfarlene, p. 525) In this episode the setting appears to be Newman’s apartment. Litigation is open to the public and arbitration is confidential. For litigation to occur, a party can issue a lawsuit and force a person to participate. In arbitration, there must be a written agreement before anyone participates (Macfarlene, p. 525). In this episode, it did not include whether the parties signed a formal written agreement or not. Litigation is a much more formal process than arbitration (Macfarlene, p. 525).

For the circumstances of this argument, it was much more appropriate to use arbitration than litigation. The issue at hand was regarding ownership of a cheap bike. Litigation would have been a waste of time as arbitration can proceed much faster and parties can receive the decision in a short time. Also, the parties would have had to pay for lawyers if they chose litigation. It seems as though Newman was the arbitrator without any compensation.

Suitability/Unsuitability to arbitration as opposed to mediation

Mediation occurs when the parties have a person who helps the parties come to an agreement (Macfarlene, p. 520). Along with arbitration, the third party is neutral. However, the third party has no authoritative decision-making power. Rather, they assist the parties in reaching their own settlement (Macfarlene, p. 261). In this episode, Newman acts as an arbitrator because he heard both sides of the story and told Elaine and Kramer the final decision. This decision is known as the “award” (Macfarlene, p. 538). The arbitrator is often selected for their expertise, fairness, and impartiality. This is a very important step for both parties (Macfarlene, p. 539). To a point this is what occurs in this episode, Jerry says, “We need to find someone with no emotional attachment…”

In this situation, I think it was best that the parties chose to participate in arbitration. It would have been very difficult for them to reach their own mutually agreed upon solution. Elaine and Kramer had very distinctive totalizing descriptions. This means that their judgments and accusations of each other were extremely strong (Macfarlene, p. 274). A mediator in this case would have the daunting duty of trying to destabilize the totalizing descriptions of the conflict in an attempt to stop the negative motivations of the conflicted parties.

Macfarlane, J., Manwaring, J., Zweibel, E., Smyth, G., & Pearlstein, A. (2011). Dispute resolution: Readings and case studies (3rd ed.). Toronto: Emond Montgomery Publications.

Sample 2

BICYCLE ARBITRATION

Suitability/unsuitability to arbitration as opposed to court litigation

This episode did a great job of demonstrating some of the key components of arbitration. Overall, this scenario more closely resembled arbitration than court litigation. There are many reasons for this. In arbitration, hearings are more informal and the parties (Elaine and Kramer) agree to the terms of arbitration (Macfarlane, Manwaring, Zweibel, Smyth & Pearlstein, 2011, p. 525). However, court litigation is very formal and is public process (Macfarlane et al., 2011, p. 525). In this episode, Elaine and Kramer conducted the hearing in the very informal setting of the arbitrator’s apartment and were able to establish the terms of the hearing on their own. One of these decisions was to make the arbitrator’s decision binding. Decisions made by the third party are binding in both arbitration and court litigation but in the scene we watched, Elaine and Kramer were able to decide on who their arbitrator was which you are not able to do with court litigation (Macfarlane et al., 2011, p. 525). Also, Elaine and Kramer were able to do this on their own time frame and it was a very quick decision making process (Macfarlane et al., 2011, p. 525). Court litigation on the other hand can be very time consuming the time and location of the proceedings is determined by the court (Macfarlane et al., 2011, p. 525). One thing I noticed about this episode that was a bit unlike arbitration and more like court litigation was their choice of the third party neutral. In arbitration, the arbitrator is typically selected based on their expertise in the subject matter and in court litigation, the third party doesn’t necessarily have special knowledge about the matter but are considered to be objective about the material being presented (Macfarlane et al., 2011, p. 525). Elaine and Kramer chose their third party neutral based on his ability to be truly neutral and objective not because he had any special knowledge. However, even with this being the case, you still aren’t able to choose who your third party in court litigation. In the end, it was interesting to see how the scenario played out and how the arbitrator made his final decision!

Suitability/unsuitability to arbitration as opposed to mediation.

This episode also can also be used to compare arbitration and mediation. In arbitration, the outcome is decided by the third party but in mediation the third party holds no decision making authority (Macfarlane et al., 2011, p. 261,525). In the episode, Elaine and Kramer decided that the third party’s decision was binding. This is one of the main reasons why the scenario is more closely related to arbitration as opposed to mediation. Much of the goal in mediation is to get the two parties to openly discuss their problems and work it out on their own. It is focused on the parties doing the hard work of understanding the issues, interests, options and implications of their situation (Macfarlane et al., 2011, p. 266). However, in the scenario between Elaine and Kramer, they wanted their third party to analyze the facts and come up with the final decision. They did not want to do the hard work of communicating with one another and trying to understand where the other person was coming from. This also makes the scene more similar to arbitration. However, both arbitration and mediation are generally informal and the timing of the proceedings are generally controlled by the parties (Macfarlane et al., 2011, p. 261, 525). They are also both a private and contractual process that remains confidential (Macfarlane et al., 2011, p. 261, 525). Overall, arbitration is the process we are seeing demonstrated in the scenario between Elaine and Kramer because the third party is the decision maker and the goal for the characters is to prove their case to the arbitrator not to come to an agreement on their own (Macfarlane et al., 2011, p. 525).

Macfarlane, J., Manwaring, J., Zweibel, E., Smyth, G., & Pearlstein, A. (2011). Dispute resolution: Readings and case studies (3rd ed.). Toronto: Emond Montgomery Publications.