ADR Legal Framework & Compliance 3 — Questions and Answers
Question 1: An arbitration agreement is found in a click-wrap consumer contract with no meaningful opportunity to negotiate. A court will most likely evaluate enforceability under:
- The parol evidence rule
- Unconscionability doctrine (Correct answer)
- The statute of frauds
- Promissory estoppel
Correct answer: Unconscionability doctrine
Courts apply unconscionability analysis to determine whether a click-wrap arbitration clause is so one-sided or procedurally unfair as to be unenforceable.
Question 2: Under the Administrative Dispute Resolution Act of 1996, federal agencies are:
- Prohibited from using ADR without Congressional approval
- Encouraged to use ADR for resolving agency disputes and required to designate a dispute resolution specialist (Correct answer)
- Required to arbitrate all disputes with contractors
- Limited to mediation for personnel matters only
Correct answer: Encouraged to use ADR for resolving agency disputes and required to designate a dispute resolution specialist
The ADRA encourages federal agencies to use ADR and requires each agency to appoint a senior official as a dispute resolution specialist.
Question 3: Which doctrine allows a court to compel arbitration even when a party claims the underlying contract is fraudulent?
- Forum selection clause enforcement
- Severability (separability) doctrine (Correct answer)
- Abstention doctrine
- Erie doctrine
Correct answer: Severability (separability) doctrine
The severability doctrine treats the arbitration clause as independent from the main contract, so fraud claims about the contract go to the arbitrator, not the court.
Question 4: A mediator in a court-connected program shares settlement details with the judge presiding over the case without party consent. This action primarily violates:
- The statute of limitations
- Mediation confidentiality rules (Correct answer)
- The Speedy Trial Act
- Mandatory disclosure requirements
Correct answer: Mediation confidentiality rules
Sharing confidential mediation communications with the presiding judge without consent violates core mediation confidentiality obligations and can compromise judicial impartiality.
Question 5: Under the UNCITRAL Model Law on International Commercial Arbitration, the tribunal's jurisdiction to hear a dispute is primarily determined by:
- The domestic courts at the seat of arbitration
- The arbitration agreement and the tribunal itself under the kompetenz-kompetenz principle (Correct answer)
- The International Court of Justice
- A majority vote of both parties' counsel
Correct answer: The arbitration agreement and the tribunal itself under the kompetenz-kompetenz principle
The kompetenz-kompetenz (or competence-competence) principle allows the tribunal to rule on its own jurisdiction based on the scope of the arbitration agreement.
Question 6: A binding arbitration award in a commercial dispute has the same effect as a court judgment primarily because of:
- The parties' verbal agreement to comply
- Confirmation by a court under FAA Section 9, which gives it the force of a court judgment (Correct answer)
- Automatic registration with the American Arbitration Association
- Publication in the Federal Register
Correct answer: Confirmation by a court under FAA Section 9, which gives it the force of a court judgment
Once a court confirms an award under FAA Section 9, the award is entered as a court judgment and is enforceable through all judicial enforcement mechanisms.
Question 7: Which ethical obligation requires an ADR neutral to inform parties about the process, their rights, and the neutral's role before proceedings begin?
- Duty of impartiality
- Duty of informed consent / self-determination (Correct answer)
- Duty of confidentiality
- Duty of competence
Correct answer: Duty of informed consent / self-determination
The duty to ensure informed consent and self-determination obligates neutrals to explain the process fully so parties can make knowledgeable decisions about participation.
ADR Legal Framework & Compliance 3
An arbitration agreement is found in a click-wrap consumer contract with no meaningful opportunity to negotiate.
A court will most likely evaluate enforceability under: