ADR Core Module flashcards
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31 cards. Read the term and the definition here. The deck at the top of this page is optional.
- BATNA
- Best alternative to a negotiated agreement: the outcome a party can obtain if talks fail. It sets the walk-away point and the real source of bargaining power.
- ZOPA
- Zone of possible agreement: the range between the parties' reservation values. A deal is possible only where those ranges overlap.
- Integrative bargaining
- Negotiation that creates value by trading across issues on which the parties have different priorities, rather than dividing a single fixed sum.
- Principled negotiation
- Fisher and Ury's method: separate people from the problem, focus on interests not positions, generate options, and insist on objective criteria.
- Anchoring bias
- The tendency of an initial figure or offer to pull subsequent estimates and concessions toward it, even when the anchor is arbitrary.
- Caucus
- A private session between the mediator and one party. Information from a caucus is shared with the other side only with permission.
- Evaluative mediation
- A mediation style in which the mediator offers views on the merits, risks, and likely outcomes, in addition to managing the process.
- Facilitative mediation
- A mediation style in which the mediator manages process and communication but does not assess the legal merits or predict outcomes.
- Med-arb
- A hybrid in which the same neutral first mediates and then arbitrates unresolved issues. Due process concerns arise because the neutral learns confidential information.
- Separability doctrine
- The arbitration clause is treated as an agreement separate from the main contract, so invalidity of the contract does not automatically invalidate the clause.
- Competence-competence
- The principle that an arbitral tribunal may rule on its own jurisdiction, including challenges to the existence or validity of the arbitration agreement.
- Seat of arbitration
- The legal place of the arbitration, which determines the supervisory court and the procedural law, distinct from where hearings are held.
- Party-appointed arbitrator
- An arbitrator chosen by one party in a multi-member tribunal. Under most rules the arbitrator must still be independent and impartial.
- Interim measures
- Provisional relief ordered by a tribunal or court to preserve the status quo or protect the arbitration, such as injunctions or asset preservation.
- Consent award
- An award that records the parties' settlement and has the same enforceability as any other award on the agreed terms.
- Setting aside
- Annulment of an award by the courts of the seat, available only on limited statutory grounds such as jurisdiction, due process, or public policy.
- New York Convention Article V
- Lists the exclusive grounds on which enforcement of a foreign arbitral award may be refused, including due process, excess of authority, and public policy.
- Singapore Convention
- The 2019 UN convention providing for recognition and enforcement of cross-border mediated settlement agreements, subject to permitted reservations.
- UNCITRAL Model Law
- A template arbitration statute (1985, amended 2006) adopted by many states, covering the agreement, tribunal, procedure, award, and challenge.
- Arbitrability
- The question of whether a dispute may lawfully be resolved by arbitration under national law, often excluding criminal, family, and some consumer matters.
- Mandatory rules
- Statutory requirements that override contrary party agreement, such as equal treatment and the right to present one's case.
- Adjudication
- A process, often statutory in construction, in which an adjudicator issues a decision binding temporarily until final arbitration or litigation.
- Expert determination
- A contractual process in which a named expert decides a technical issue. The decision binds only if the contract so provides and has no statutory enforcement regime.
- Early neutral evaluation
- A non-binding process in which an experienced neutral gives the parties an assessment of the merits, usually to inform settlement.
- Online dispute resolution
- Use of technology platforms to conduct negotiation, mediation, or arbitration, raising concerns about identity verification, due process, and data security.
- Independence vs impartiality
- Independence concerns relationships and interests with a party; impartiality concerns bias or predisposition toward a party or the outcome.
- Continuing duty to disclose
- A neutral's obligation to disclose, throughout the proceedings, facts that may create justifiable doubts about independence or impartiality.
- Mediation privilege
- Statutory or contractual protection preventing mediation communications from being used in later proceedings, subject to stated exceptions.
- Informed consent
- The parties' agreement to proceed after understanding the process, its confidentiality, the neutral's role, and the costs involved.
- Pathological arbitration clause
- A clause whose defective drafting, such as conflicting institutions or an ambiguous seat, creates uncertainty or prevents the arbitration from proceeding.
- Multi-tier dispute clause
- A clause requiring sequential steps, such as negotiation then mediation then arbitration, usually with time limits and conditions precedent.