ADR Legal Framework & Compliance 2 — Questions and Answers
Question 1: Under the Federal Arbitration Act (FAA), which standard governs whether an arbitration award can be vacated?
- De novo review by a federal court
- The award was procured by corruption, fraud, or undue means (Correct answer)
- The arbitrator applied the wrong legal standard
- The losing party disagrees with the outcome
Correct answer: The award was procured by corruption, fraud, or undue means
FAA Section 10 permits vacation of an award only on narrow grounds including corruption, fraud, evident partiality, or arbitrator misconduct.
Question 2: Which U.S. federal statute primarily governs international commercial arbitration when the United States is a party to the New York Convention?
- Federal Arbitration Act Chapter 1
- Federal Arbitration Act Chapter 2 (Correct answer)
- Uniform Arbitration Act
- Administrative Dispute Resolution Act
Correct answer: Federal Arbitration Act Chapter 2
FAA Chapter 2 implements the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards for international disputes.
Question 3: A mediator discovers mid-session that she previously represented one party's opponent in related litigation. What is the appropriate action under ethical rules?
- Continue if the other party consents
- Disclose the conflict and withdraw unless all parties give informed consent (Correct answer)
- Complete the session since litigation is unrelated to mediation
- Refer the matter to a co-mediator without disclosing
Correct answer: Disclose the conflict and withdraw unless all parties give informed consent
Ethical standards require mediators to disclose all potential conflicts and withdraw unless fully informed consent is obtained from all parties.
Question 4: Under the Uniform Mediation Act (UMA), which communication is NOT protected by mediation privilege?
- A party's opening statement to the mediator
- A threat of bodily harm made during the session (Correct answer)
- A written settlement proposal exchanged in mediation
- The mediator's notes about party credibility
Correct answer: A threat of bodily harm made during the session
The UMA expressly excludes from privilege communications that involve threats of violence or crimes, to protect public safety.
Question 5: An employer's mandatory arbitration clause in an employment contract covers future discrimination claims. Under current U.S. law, this clause is generally:
- Void as against public policy for all employment disputes
- Enforceable unless the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act applies (Correct answer)
- Automatically unconscionable because it is a contract of adhesion
- Invalid under the National Labor Relations Act for all employees
Correct answer: Enforceable unless the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act applies
The 2022 Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act bars mandatory pre-dispute arbitration for those specific claims, but other employment disputes may still be arbitrated.
Question 6: Which principle requires an arbitrator to allow each party a meaningful opportunity to present its case before rendering an award?
- Res judicata
- Due process / fundamental fairness (Correct answer)
- Collateral estoppel
- Forum non conveniens
Correct answer: Due process / fundamental fairness
Due process or fundamental fairness mandates that arbitrators afford each side a fair hearing, and failure to do so can be grounds to vacate an award.
Question 7: When a state mediation confidentiality statute conflicts with a federal discovery rule in a case before a federal court sitting in diversity, which generally controls?
- Federal procedural rules (FRCP) control over state privilege statutes
- State law governs privileges under Federal Rule of Evidence 501 (Correct answer)
- The mediator has discretion to choose the applicable rule
- The party asserting privilege chooses the more favorable law
Correct answer: State law governs privileges under Federal Rule of Evidence 501
FRE 501 provides that in civil diversity cases state law governs privileges, so the state mediation confidentiality statute typically applies.
ADR Legal Framework & Compliance 2
Under the Federal Arbitration Act (FAA), which standard governs whether an arbitration award can be vacated?