Mediation & ADR Techniques Flashcards

What is 'issue framing' in the context of mediation, and why is it important?

Answer: Defining the questions to be resolved in neutral, non-positional language to encourage problem-solving

Neutral issue framing removes adversarial language so parties focus on shared problems rather than entrenched positions, facilitating creative resolution.

In a 'mini-trial,' the primary decision-makers are typically:

Answer: Senior executives from each party who hear abbreviated presentations and then negotiate

Mini-trials bring senior decision-makers face-to-face with condensed evidence presentations so they can make informed settlement decisions without full litigation.

Which ethical obligation applies to a mediator if they discover during a caucus that one party intends to commit fraud?

Answer: The mediator should consider withdrawing from the mediation to avoid facilitating misconduct

While mediators generally maintain strict confidentiality, most ethical codes permit or require withdrawal when continuing would assist illegal activity.

The 'BATNA' concept developed by Fisher and Ury is most directly relevant in ADR because it:

Answer: Helps a party evaluate whether a proposed settlement is better than their outside alternative

Knowing your Best Alternative to a Negotiated Agreement gives you a rational benchmark to accept or reject settlement proposals in mediation and negotiation.

Under AAA Commercial Arbitration Rules, a party seeking expedited arbitration procedures must typically show that:

Answer: The amount in controversy is $75,000 or less (unless parties agree otherwise)

AAA expedited procedures apply by default to smaller claims, allowing faster, lower-cost arbitration appropriate to the amount at stake.

A 'settlement conference' ordered by a court differs from private mediation primarily because:

Answer: A judge or magistrate facilitates it, and it occurs within the litigation framework

Court-ordered settlement conferences are conducted by judicial officers within the pending case, giving the process formal authority while still pursuing consensual resolution.

Which ADR mechanism is MOST appropriate when parties need a fast, binding resolution based on technical industry expertise?

Answer: Expert determination

Expert determination puts a specialist in a relevant field in the role of decision-maker, producing a binding ruling quickly without the formality of full arbitration.