SYSTEMS DESIGN

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SYSTEMS DESIGN

• November 2002
• Fordham School of Law
• Scanlon

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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

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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)

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PRIVATE CONTEXT

• Pre-dispute
• Dispute Resolution Clauses Multi-tiered or
  Multi-Step
• Post-dispute
• Toro example

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MULTI-TIERED or MULTI-STEP CLAUSE

• Pre-dispute
• Features
• Usage

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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

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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

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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

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DESIGN SEQUENCE

• Interest-Based Procedures
• Negotiation
• Mediation
• (valuable means to ensure that interests are
  thoroughly considered before a dispute turns into
  a lawsuit)

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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

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DESIGN SEQUENCE

• Low-Cost Back-Up Procedures
• Arbitration (conventional, expedited, final
  offer)
• Marketing of Design System
• motivation, skills, resources

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HIDDEN PITFALLS

• Increase in claims if system is designed?
• Sequence of Procedures (e.g., negotiation,
  mediation, arbitration) may undermine negotiation
  stage
• Buy-In

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DUE PROCESS CONSIDERATIONS

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

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MONITORING

• How to evaluate systems?
• Criteria

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EMPLOYMENT PROGRAMS

• Private
• Case law
• Recent statutory developments

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PUBLIC CONTEXT

• Court Programs (e.g., Mandatory Mediation
  Programs)
• Mass Claims Settlements