Mediation & ADR Techniques Flashcards

Which of the following BEST describes 'transformative mediation'?

Answer: The process focuses on empowering parties and fostering mutual recognition

Transformative mediation aims to shift the quality of the conflict interaction by strengthening each party's decision-making capacity and sensitivity to the other's situation.

In online dispute resolution (ODR), which feature MOST distinguishes it from traditional ADR?

Answer: It uses digital platforms to resolve disputes asynchronously and across distances

ODR leverages technology to facilitate dispute resolution without requiring physical presence, making it especially useful for e-commerce and cross-border disputes.

A 'cooling-off period' in a commercial dispute clause serves to:

Answer: Require parties to pause and attempt direct negotiation before filing for ADR

Cooling-off clauses mandate a waiting period for good-faith direct negotiation before formal ADR or litigation may commence, often resolving disputes cheaply.

Under the Federal Arbitration Act (FAA), an arbitration agreement in a commercial contract is:

Answer: Generally valid and enforceable, with courts having limited grounds to refuse it

The FAA establishes a strong federal policy favoring arbitration, and courts may vacate an award only on narrow grounds such as fraud or arbitrator misconduct.

A 'high-low agreement' in arbitration means:

Answer: The arbitrator must award a figure that falls between pre-agreed minimum and maximum amounts

High-low agreements cap the arbitrator's award between a floor and a ceiling negotiated by the parties, reducing uncertainty while keeping the process live.

Which statement about 'conciliation' most accurately distinguishes it from mediation?

Answer: A conciliator may take a more proactive role in proposing solutions and communicating between parties

While the terms are sometimes used interchangeably, conciliation often involves the neutral playing a more directive role, including shuttling proposals between parties who may not meet face-to-face.

A 'pre-dispute ADR clause' differs from a 'post-dispute submission agreement' in that it:

Answer: Is agreed to before any dispute arises, typically within the original contract

Pre-dispute clauses lock parties into ADR at contract formation, while submission agreements are negotiated after a dispute has already arisen, giving parties more leverage to refuse.