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Chapter 4
Alternative Tools of Dispute Resolution
Introduction
Chapter Four addresses these questions:
• What are negotiation and settlement?
• What is mediation?
• What is arbitration?
• What are minitrials?
• What is early neutral case evaluation?
• What are private trials?
• What are summary jury trials?
• What are the uses of court-annexed alternative dispute resolution?
• What is the future of alternative dispute resolution?
• What are the global dimensions of alternative dispute resolution?
Achieving Teaching Excellence
Asking Better Questions in Class
In prior chapters, this Teaching Excellence section has presented information that stresses
the importance of asking students questions in class. In this chapter, information will be
presented about how instructors can ask better questions in class. Two articles are particularly
helpful in addressing the question of how to ask better questions in class.
In an article by M. Neil Browne (coauthor of this LEB text) and Stuart M. Keeley, the
authors teach an important lesson about how to ask better questions in class—an instructor
should ask only those questions that inform him or her what the student is learning. Browne &
Keeley remind instructors that the questions they ask in class should require students to apply
their assignments or make reasoned judgments about the worth of a particular argument.
Instructors should ask questions that advance students’ understanding of the course material.
According to Browne and Keeley the following is a list of inadequate questions:
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• Does everyone understand?
• Have I made myself clear?
• Are there any questions?
Usually, students do not answer these questions. If they do, their answers rarely show
instructors what they are learning.
Some questions are not inadequate, but they are still weak. Thomas R. Daniel, in an article
on asking better questions, lists questions that are “faulty” or ineffective. The following is
Daniel’s list:
• The double question “Why did we go to war and what were the consequences?”
These questions are faulty because they ask lower-order rather than higher-order questions,
ask questions that have just one right answer, or ask questions that students cannot answer based
on what they’ve learned. Instructors should strive to find out what their students don’t know.
Instructors should find out what material confuses students so that they can work on this material
in class.
Browne and Keeley suggest instructors ask questions that require lengthier, more complex
answers. These questions will focus on higher-order thinking skills. They allow instructors to see
what their students have and have not learned. Browne and Keeley suggest these questions:
• What is your understanding of …?
• How would you evaluate …?
• Why was x included in the text, lecture, or argument?
The critical thinking questions in the Kubasek, Brennan & Browne textbook and the
References
• M. Neil Browne & Stuart M. Keeley, “Achieving Excellence: Advice to New Teachers”,
33 COLLEGE TEACHING 78 (1985).
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Chapter Overview, Topic Outline, and Discussion Questions
Chapter Overview
This chapter presents some good cases that give students a chance to work on their critical
thinking skills. The cases are also excellent for helping students understand some of the complex
situations that have developed from increased use of arbitration. Chapter Four also gives students
Topic Outline
I. Negotiation and Settlement
II. Mediation
A. Selection of a Mediator
B. Common Uses of Mediation
C. Advantages of Mediation
D. Criticisms of Mediation
III. Arbitration
A. Hall Street Associates, L.L.C. v. Mattel, Inc.
B. Methods of Securing Arbitration
2. American Express Co. v. Italian Colors Restaurant
C. Selection of an Arbitrator
D. Common Uses of Arbitration
E. Problems with Arbitration
IV. Minitrials
V. Early Neutral Case Evaluation
VI. Private Trials
VII. Summary Jury Trials
VIII. Court-Annexed Alternative Dispute Resolution
A. Use of Court Annexed ADR in the State and Federal Systems
B. Differences between Court-Annexed and Voluntary ADR
IX. The Future of Alternative Dispute Resolution
X. Global Dimensions of Alternative Dispute Resolution
A. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth
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XI. Summary
Discussion Questions for Chapter Four
1. Explain the differences between negotiation and arbitration.
One difference between negotiation and arbitration is that negotiation is simpler and more
2. What are the seven canons of the Arbitrator’s Code of Ethics?
The seven canons of the Arbitrator’s Code of Ethics are:
• Canon 1—an arbitrator will uphold the integrity and fairness of the arbitration process.
• Canon 2—if the arbitrator has an interest or relationship that is likely to affect his or
her impartiality or that might create an appearance of partiality or bias, it must be
disclosed.
3. Explain the differences between arbitration and mediation.
One difference between mediation and arbitration is that in arbitration the arbitrator makes
4. Explain the relationships between minitrials and summary jury trials.
One relationship between the two is that minitrials are older. Minitrials began in 1977,
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summary jury trials in 1983. Both are ways to resolve disputes more quickly and
5. Explain why someone might say this statement is true: The use of alternative dispute
resolution methods is problematic.
The following are some of the reasons why someone may say that the use of alternative
dispute resolution methods is problematic:
• Some legal scholars are concerned about whether a dispute resolution firm can be truly
unbiased when one of the parties to the dispute is a major client of the dispute
resolution provider.
• Another issue raised by some critics is whether it is fair for consumers to be coerced
into an ADR forum and thereby forced to give up their right to a trial, especially when:
Answers to Critical Thinking about the Law, Case Summaries, and Answers
to Review Questions, Review Problems, and Case Problems
Suggested Answer to Critical Thinking about the Law
1. Litigation is unwieldy, time consuming, expensive, generates adverse publicity, reduces
2. The best answer is efficiency. ADR minimizes both costs and time spent resolving disputes.
Instruct students to add to the list of ethical norms.
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Case Summary—Hall Street Associates, L.L.C. v. Mattel, Inc.
This case is in the book to show the extent of an arbitrator’s decision-making power. The
case arose when an arbitrator ruled in favor of Hall Street. However, the court dismissed the
Case Summary—Ignazio v. Clear Channel Broadcasting, Inc., et al.
This case considers whether a clause vacating the right to sue when entering into an
employment arbitration agreement is legal. The contract, under section 10B allowed for any
Suggested Answers to Critical Thinking about the Law Questions
1. It is clear that the court is in favor of arbitration. In fact, the court cites the strong public
2. If the one provision is severed, the rest of the agreement is intact, making arbitration
Case Summary—American Express Co. v. Italian Colors Restaurant
American Express entered into an agreement with merchants who accept their credit cards
that all disputes were to be settled through arbitration. Despite this, several merchants filed a
class action suit on the grounds that American Express violated Section 1 of the Sherman Act,
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The Supreme Court reversed the case in favor of American Express. The court found that a
contractual waiver of class arbitration is enforceable under the Federal Arbitration Act regardless
of whether the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the
potential recovery. In the words of the Court:
The regime established by the Court of Appeals decision would require—before a plaintiff can be
Suggested Answers to Critical Thinking about the Law Questions
1. Perhaps Scalia’s decision would have been different if non-merchant consumers were
involved in the agreement with American Express. However, as the facts indicate, the
subject of the dispute was an arbitration clause in an agreement between American Express
2. Scalia said that class arbitration greatly increased risks to defendants. It is important to
understand and grasp what has been stated, as it interferes with fundamentals of arbitration
3. Scalia could have reasonably justified agreeing with the Ninth Circuit by stating that
allowing class-based arbitration would have more negatives than positives as it would work
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Case Summary—Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth
This case considers whether an American court can enforce an agreement to resolve antitrust
Answers to Review Questions
4-1. The use of ADR is increasing because alternative methods are less expensive, less time-
consuming, and the formal hearing times and places can be set to accommodate the
4-3. Arbitration may be secured voluntarily or it may be imposed upon the parties. Voluntary
arbitration means it is through a binding arbitration clause in a contract. This kind of
4-4. Some people believe arbitration is problematic because arbitrators lack subject matter
expertise in certain areas, especially discrimination. Also, compulsory arbitration in some
4-5. According to the Arbitrator’s Code of Ethics, the basic obligations of an arbitrator are as
follows:
• The arbitrator will uphold the integrity and fairness of the arbitration process.
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• The arbitrator will avoid impropriety or the appearance of it while communicating
4-6. Mediators make no final decision. They act as facilitators of communication between
disputing parties. It is a collaborative and creative process. A disputant would favor
mediation if he or she wanted:
• To save time and money
Answers to Review Problems
4-7. No, a court would not uphold the award. This question focuses on the authority of the
4-8. The parties can secure arbitration voluntarily by entering into a submission agreement
4-9. Yes. Hannah can argue that the arbitrator has violated the Arbitrator’s Code of Ethics by
4-10. Eloise will be forced to arbitrate her claims. This is because she signed the employment
4-11. Eberly can probably have the award overturned. The award may be set aside only if one
of these four conditions is met:
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4-12. The court will grant S.A. & E.’s motion to dismiss. Marshall will lose because arbitrators
Answers to Case Problems
4-13. The California Supreme Court vacated the judgment and thus invalidated the arbitration
process in Sonic-Calabasas v. Moreno. This is because it perceived this ruling to be
4-14. The court of appeals affirmed the trial court’s denial of the motion to compel arbitration,
concluding: a) the pre-admission agreement’s arbitration clause did not comply with
Texas Civil Practice and Remedies Code Section 74.451 and was therefore invalid; and b)
4-15. The United States Supreme Court reversed the case in favor of American Express. The
court found that a contractual waiver of class arbitration is enforceable under the Federal
Arbitration Act regardless of whether the plaintiff’s cost of individually arbitrating a
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4-16. The Court of Appeals ruled in favor of Atlantic Video because the company announced
that it planned to waive its enforcement of certain provisions within the arbitration
4-17. The court found in favor of the defendant in this case. The court noted that although a
party waives its right to arbitration when it substantially invokes the judicial process to
4-18. The court decided that the parties did not have to settle through arbitration. The
arbitration agreement was not binding under Kentucky law because the arbitration
4-19. The appellate court reversed and remanded the trial court’s opinion, determining that the
arbitration provision should be upheld even if other specific provisions of the
employment agreement were found to be unconscionable. The court found that while
4-20. The court ruled that an arbitration provision contained in an employment contract cannot
be expanded to require classwide arbitration unless explicitly set out in the agreement.
The court cited the United States Supreme Court’s 2010 ruling in Stolt-Neilsen v.
The Legal Environment Of Business: A Critical Thinking Approach
arbitration unless there is a contractual basis for concluding that the party agreed to do so.
Thinking Critically about Relevant Legal Issues
1. The issue at hand is whether patient care is analogous to employee–employer relationships.
2. The issue at hand is whether treating patients as employees from a legal standpoint is ethical.
What happens when a patient declines to sign the agreement? Can the doctor refuse care? Is
there then a lawsuit? Here, the author seems to prefer efficiency, which is often an ethical
3. Students may take the stand that this is not an apt analogy. The instructor should ask
4. An essay following an opposition to the author would address the questions above. One