Mediation & ADR Techniques Flashcards
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Read the first 7 Mediation & ADR Techniques flashcards as text
Which of the following BEST describes 'transformative mediation'?
Answer: The process focuses on empowering parties and fostering mutual recognition
Transformative mediation aims to shift the quality of the conflict interaction by strengthening each party's decision-making capacity and sensitivity to the other's situation.
In online dispute resolution (ODR), which feature MOST distinguishes it from traditional ADR?
Answer: It uses digital platforms to resolve disputes asynchronously and across distances
ODR leverages technology to facilitate dispute resolution without requiring physical presence, making it especially useful for e-commerce and cross-border disputes.
A 'cooling-off period' in a commercial dispute clause serves to:
Answer: Require parties to pause and attempt direct negotiation before filing for ADR
Cooling-off clauses mandate a waiting period for good-faith direct negotiation before formal ADR or litigation may commence, often resolving disputes cheaply.
Under the Federal Arbitration Act (FAA), an arbitration agreement in a commercial contract is:
Answer: Generally valid and enforceable, with courts having limited grounds to refuse it
The FAA establishes a strong federal policy favoring arbitration, and courts may vacate an award only on narrow grounds such as fraud or arbitrator misconduct.
A 'high-low agreement' in arbitration means:
Answer: The arbitrator must award a figure that falls between pre-agreed minimum and maximum amounts
High-low agreements cap the arbitrator's award between a floor and a ceiling negotiated by the parties, reducing uncertainty while keeping the process live.
Which statement about 'conciliation' most accurately distinguishes it from mediation?
Answer: A conciliator may take a more proactive role in proposing solutions and communicating between parties
While the terms are sometimes used interchangeably, conciliation often involves the neutral playing a more directive role, including shuttling proposals between parties who may not meet face-to-face.
A 'pre-dispute ADR clause' differs from a 'post-dispute submission agreement' in that it:
Answer: Is agreed to before any dispute arises, typically within the original contract
Pre-dispute clauses lock parties into ADR at contract formation, while submission agreements are negotiated after a dispute has already arisen, giving parties more leverage to refuse.