Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs...
-
Upload
howard-swan -
Category
Documents
-
view
213 -
download
0
Transcript of Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs...
![Page 1: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/1.jpg)
Arbitration
Class 1
![Page 2: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/2.jpg)
Administrative
Give quiz
![Page 3: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/3.jpg)
Review Factors that shape whether mediation
occurs
Mediation and Impartiality
Mediation Outcomes
The truck and tire negotiation
![Page 4: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/4.jpg)
Today
I. What is ArbitrationII. Employment Arbitration and
other contracts of adhesionIII. Due ProcessIV. The Due Process Protocol
![Page 5: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/5.jpg)
I. What is arbitration?
Assistance to two (or more) disputing parties by a third party who has the authority to make a binding decision
Voluntary versus compulsory arbitration
![Page 6: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/6.jpg)
II. Employment Arbitration and other Contracts of Adhesion What is a contract of adhesion?
Examples? Example – Moving companies
Do you have a choice? What is your alternative?
Many employers now routinely require all employees to sign a contract agreeing to arbitrate any and all employment disputes
Involves giving up any right to sue, even over disputes involving statutory rights
Do you have a choice in signing such an agreement?
![Page 7: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/7.jpg)
II. Statutory Rights What are statutory rights? Can you provide examples of statutory rights
you might have in your relationship with Your neighbors? Your family? Your students (if you are a teacher) or your
teacher (if you are a student)? Other examples?
Are you or can you be required to arbitrate any disputes of this kind?
![Page 8: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/8.jpg)
II. Statutory Rights
Examples that might become subject to dispute at work? Discrimination Entitlement to reasonable accommodation Entitlement to minimum wage or overtime
pay Pension protection Termination bonus
![Page 9: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/9.jpg)
II. Statutory Rights Example – The case of Jamie Leigh Jones Background and the Issue The employer claims she waived her right to
sue in signing her 2005 employment agreement requiring that she arbitrate any workplace disputes
Jones asked a federal judge to disregard the arbitration agreement
Since then law has changed, forbidding military to contract with companies that require employees to arbitrate sexual harassment claims
![Page 10: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/10.jpg)
III. Due Process What is “due process?” Why is it a special concern with pre-
dispute arbitration agreements at work? Is your employer obliged to honor the
rules of “due process” in her/his dealings with you?
What “due process” rights would you have if you sued your employer?
![Page 11: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/11.jpg)
IV. Due Process Protocol 1995 Due Process Protocol What did protocol require?
Right to representation by someone of the employee’s choosing
Right to discovery under arbitrator’s supervision Training for arbitrators in requirements of statutes
involved Employer to pay most costs but division of costs not
disclosed to arbitrator Arbitrator can impose any remedy available in court Awards final and binding
![Page 12: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/12.jpg)
Next Time
Variations on the theme of arbitration
![Page 13: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/13.jpg)
Arbitration
Class 2
![Page 14: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/14.jpg)
Administrative Return quiz
Collect critique 4
Second negotiation exercise begins next class
Dolphy Day – check announcements
![Page 15: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/15.jpg)
Review What is arbitration? Contracts of Adhesion and Pre-
dispute Arbitration Agreements Statutory Rights and Due Process The “Due Process Protocol” for
employment arbitration
![Page 16: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/16.jpg)
Today
I. Recent Cases
II. How do arbitrator’s decide cases?
III. What incentives do these alternative decision models create?
IV. The Goldberg Model
![Page 17: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/17.jpg)
I. Recent Court Cases
What should be the law in this area?
When should employers be able to compel arbitration?
When should employees have the right to go to court?
How about customers of moving companies? Building contractors?
![Page 18: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/18.jpg)
I. Recent Court Cases
Skirchak v. Dynamic Research Corp.
Seawright v. American General Financial Services
Brady v. Williams Capital Group
![Page 19: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/19.jpg)
II. How Do Arbitrators Decide Cases?
Suppose arbitrators “always” compromise between the positions of the disputants?
Suppose arbitrators decide cases by a set of principles?
Suppose arbitrators decide cases randomly?
![Page 20: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/20.jpg)
III. What incentives do these alternative decision models create?
Compromise?
Principles?
Random decisions?
![Page 21: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/21.jpg)
Example
One friend “owes” another $1000 That friend has refused to pay it
back, saying it was a gift The lender claims it was a loan but
that she has lost the IOU indicating that
What will the arbitrator do?
![Page 22: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/22.jpg)
IV. The Goldberg Model How is the Goldberg approach different
from conventional arbitration?
What is the reason for this modification?
![Page 23: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/23.jpg)
Example Negotiating a marital separation
The background The principles the arbitrator uses
Will the parties be able to reach an agreement? What will the agreement look like? Why?
Divide class and have them attempt to reach agreement
![Page 24: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/24.jpg)
Information for the Case The background
Two children 10 and 6. Both parents want custody of the children Husband and wife both work outside the home Husband earns 20% less than the wife (He earns $40,000 and she
earns $50,000) They have a house with worth $135,000 with $100,000 still to pay on
the mortgage
The principles the arbitrator uses Mothers retain primary physical custody of children with visitation
rights for the father The non-custodial parent must pay child support of $500 per month
per child Non-custodial parent must pay alimony only if after child support
he/she earn at least 10% more than the custodial parent. Must pay half of all amounts over that 10% more
Custodial parent must pay alimony if before child support he/she earns at least 100% more than the non-custodial parent. Must pay half of all amounts over that 100% more
House remains with custodial parent and each parent must pay half of mortgage and taxes until youngest child is 18 at which point the house will be sold and proceeds divided equally
![Page 25: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/25.jpg)
Example Parent insists child (16 years old) be home
by midnight on weekends Child argues for 2:00 AM curfew Parent insists child mow the lawn and
shovel the driveway Child argues for payment for those chores Arbitrator rules Will parties negotiate before
implementation of the award? What outcome?
![Page 26: Arbitration Class 1. Administrative Give quiz Review Factors that shape whether mediation occurs Mediation and Impartiality Mediation Outcomes The truck.](https://reader038.fdocuments.in/reader038/viewer/2022110304/551c35c95503467b488b4594/html5/thumbnails/26.jpg)
Next Time
Begin 2nd negotiation exercise
Begin Topic of Arbitration Variations after the break