Background & purpose of the system 1 basic institutions, processes, and players 3

ADR Generally

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  We actually don’t know that all cases settle before trial – what we do know however, is that most do not proceed to trial
  
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  Real push for parties to settle across the map, at all levels
  
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    Generally, settlement is encouraged by courts (see seidel, para 2) “absent legislative intervention, the courts will generally give effect to the terms of ac commercial contract… even a contract of adhesion, including an arbitration clause”. Also statutes like Commercial Mediation Act.
    
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    Even within rules of professional conduct- obligation to canvass- at least discuss- ADR with client (r.3.2-4)
    
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  DR continuum: Recall 6.7% of cases go to a court or tribunal (Everyday Legal Problems)
  
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  Negotiation and mediation basics
  
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    Negotiation: consensus based- no mediator. Parties have full control
    
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    Mediation: parties still have control, though consensus reached is guided by mediator
    
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    Distinguish from civil litigation which is a rights-based, distributive (competitive, zero-sum game) process. Negotiation is an opportunity for people to explore their interests – what they may care about but may not be entitled to – and is a more integrative process
    
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      This is to say, in ADR, interests to be reconciled are at play, not (only) positions (rights). They are integrative, not (only) distributive (competitive) processes.
      

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  If parties go to court, they can only get the relief/remedy available for the court to give – determined by legal rights that were alleged to be infringed in (statement of claim)
  
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  Separate the people from the problem, where possible
  
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  Prioritizes parties to think in terms of BATNA (“best alternative to a negotiated agreement”), as opposed to a “bottom line” – think about what the deal is worth, how many alternatives you have. Good strategy to create alternatives
  
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  Resolution ideally falls within ZOPA (Zone of Potential Agreement, ZOPA) – where the rights and interests for both sides overlap
  
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    E.g. defamation discount broker case: forced apology vs. damages
    
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    E.g. apology from PM re: residential schools
    
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  Process: choice, control, pluralism, etc.
  
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  Other: confidentiality, power/control, (lack of) precedent, etc.
  
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  Connect to other parts of the course:
  
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    Pluralism of people, process, norms, etc. – how people experience law and disputes, and how they might choose to resolve those disputes
    
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    Access to justice
    
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    Other options (week 11, class 2)
    

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