CBN Mediation & ADR Techniques 3 — Questions and Answers
Question 1: Which of the following BEST describes 'transformative mediation'?
- Mediators push parties toward the most economically efficient outcome
- The process focuses on empowering parties and fostering mutual recognition (Correct answer)
- A neutral expert imposes a transformation plan on the business relationship
- Parties are required to transform their legal claims into financial figures only
Correct 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.
Question 2: In online dispute resolution (ODR), which feature MOST distinguishes it from traditional ADR?
- It is always binding and enforceable under federal law
- It uses digital platforms to resolve disputes asynchronously and across distances (Correct answer)
- It eliminates the need for any neutral third party
- It is only available for disputes under $500
Correct 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.
Question 3: A 'cooling-off period' in a commercial dispute clause serves to:
- Give courts jurisdiction to impose a temporary injunction
- Require parties to pause and attempt direct negotiation before filing for ADR (Correct answer)
- Allow either party to unilaterally terminate the contract without penalty
- Freeze all financial obligations for a fixed number of days
Correct 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.
Question 4: Under the Federal Arbitration Act (FAA), an arbitration agreement in a commercial contract is:
- Enforceable only if each party had independent legal counsel at signing
- Generally valid and enforceable, with courts having limited grounds to refuse it (Correct answer)
- Superseded by state consumer protection laws in all circumstances
- Void unless filed with the American Arbitration Association within 30 days
Correct 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.
Question 5: A 'high-low agreement' in arbitration means:
- The arbitrator must award a figure that falls between pre-agreed minimum and maximum amounts (Correct answer)
- Parties agree to alternate between high-value and low-value claims in a single session
- The filing fee is scaled proportionally to the size of the claim
- A senior arbitrator reviews the junior arbitrator's decision within set time limits
Correct 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.
Question 6: Which statement about 'conciliation' most accurately distinguishes it from mediation?
- Conciliation uses a panel of three neutrals while mediation uses one
- A conciliator may take a more proactive role in proposing solutions and communicating between parties (Correct answer)
- Conciliation is always conducted online, whereas mediation is always in person
- Conciliation agreements are automatically binding court orders
Correct 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.
Question 7: A 'pre-dispute ADR clause' differs from a 'post-dispute submission agreement' in that it:
- Is signed after a dispute arises and requires court approval
- Is agreed to before any dispute arises, typically within the original contract (Correct answer)
- Applies only to tort claims, not contract claims
- Must be renegotiated each time a new dispute occurs
Correct 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.
CBN Mediation & ADR Techniques 3
Which of the following BEST describes 'transformative mediation'?