SYSTEMS DESIGN

• November 2002

• Fordham School of Law

• Scanlon

VENUES

• PRIVATE CONTEXT– B2B

• Multi-Tiered or Multi-Step Dispute Resolution Clauses

– Employers/Employees Systems

– Business-Consumer Systems

• PUBLIC CONTEXT– Court-annexed Systems

– Implementation of Mass Claims Settlements

– Federal or State Employers/Employees

CHALLENGE

• “The task for parties who can reasonably anticipate a stream of disputes between them is to go beyond settling those disputes one at a time and to go beyond selecting one procedure to resolve all disputes. Their goal should be to design at comprehensive and effective dispute resolution system.” (Goldberg, Brett, and Ury)

PRIVATE CONTEXT

• Pre-dispute– Dispute Resolution Clauses: Multi-tiered or

Multi-Step

• Post-dispute– Toro example

MULTI-TIERED or MULTI-STEP CLAUSE

• Pre-dispute

• Features

• Usage

EXAMPLE OF DESIGN PRINCIPLES

• Prevention checks

• Interests-based focus - not rights-based

• “Loop-backs” to negotiation

• Low-cost adjudication backups

• Low-to-high cost sequence

• Provide necessary motivation, skills, resources and environment

BASIC BUILDING BLOCKS

• Step One: Negotiation

• Step Two A: Mediation

• Step Two B: “Loop-backs” - evaluative mediation, advisory opinions, ENE

• Step Three: Arbitration or Litigation

DESIGN SEQUENCE: ONE ROADMAP

• Identification of Objectives and Goals

• Identification of Participants – Design Committee? – Importance of involving “stakeholders” in

system

• Prevention Procedures– Notification and Consultation– Post-Dispute Analysis and Feedback

• Interest-Based Procedures– Negotiation– Mediation

• (valuable means to ensure that interests are thoroughly considered before a dispute turns into a lawsuit)

DESIGN SEQUENCE

• Loop-Back Procedures– Advisory Arbitration– Dispute Review Board

• construction - nonbinding, yet typically admissible in any subsequent dispute resolution proceeding

– Minitrial (for more significant disputes)– Summary Jury Trial (for more significant

disputes)– Cooling-Off Period

DESIGN SEQUENCE

• Low-Cost Back-Up Procedures– Arbitration (conventional, expedited, final

offer)

• “Marketing” of Design System– motivation, skills, resources

DESIGN SEQUENCE

• Increase in claims if system is designed?

• Sequence of Procedures (e.g., negotiation, mediation, arbitration) may undermine negotiation stage

• Buy-In

HIDDEN PITFALLS

DUE PROCESS CONSIDERATIONS

– Neutrals– Payment– Pre-dispute vs. post-dispute– Remedies– Notice– Others

• How to evaluate systems?

• Criteria

MONITORING

EMPLOYMENT PROGRAMS

• Private

• Case law

• Recent statutory developments

PUBLIC CONTEXT

• Court Programs (e.g., Mandatory Mediation Programs)

• Mass Claims Settlements