I'm giving this an anticipatory five stars because the second edition is coming at you (in 2011?) to ROCK YOUR WORLD!!! People are going to be resolving disputes outside of judicial venues like there's no tomorrow! This book alone may single-handedly solve the over-crowding of the court systems.
Okay, maybe not, but I think the second edition will be better. We put some elbow grease into that baby. I think the book suffers from having two authors, to be quite honest. Michael Moffitt, one of the co-authors, is a really exceptional professor, and I think he's a good writer, too. I have a problem writing things with other people, though, because their voice gets into my head in a confusing way. I feel like something similar happened here, where both authors became a little boring and convoluted because their voices interfered with each other. Enough of this bellyaching and self-promotion, though. Let me tell you what I know about dispute resolution.
There are three basic types of extra-judicial dispute resolution: negotiation, mediation, and arbitration. People should use them! (but maybe not arbitration because that's pretty crazy)Negotiation
Negotiation happens in any context. So, if you're at a yard sale and you simply must have that light saber, but you only have $2 in your pocket and it's labeled $10, you negotiate. It pretty much looks like this
. The book [b:Getting to Yes|6608641|Getting to Yes|Roger Fisher|http://ecx.images-amazon.com/images/I/51VKeKbo53L._SL75_.jpg|6802589] started all this lingo about BATNAs (Best Alternative to a Negotiated Agreement) and ZOPAs (Zone of Possible Agreement). For more on those thingamajiggers: BATNA
and, actually, this book describes ZOPAs better than anything I can find on the internets, so you'll have to purchase your own copy in 2011, or whenever 2.0 comes out.Mediation
Mediation becomes necessary when you've decided to shun someone
. Mediation is my favorite way to resolve a fight. So, you are shunning someone, or that person is shunning you, and you have to bring in an outside person to be your translator. The neutral party goes back and forth saying things like, "What I'm hearing you say is . . ." and "Would you be willing to compromise FOR THE CHILDREN?!" or some such. It's excellent. Plus, mediation is sort-of confidential, so if you confess to everything being your fault in mediation, but then don't reach an agreement and still want to litigate, they can't hold your confession against you. Check your local statutes on that one, though, because a lot of the states have different exceptions or rules for confidentiality. Also, there's some question as to whether mediation in one court is confidential if you sue in a different court. That's weird, and I kind of want to look into it more.Arbitration
I think the best way to explain arbitration is that it's kind of like a slap bet
. You've got your agreement between the parties (the slap bet), but then if a dispute arises, you've got a neutral party to administer justice (the slap-bet commissioner). The slap-bet commissioner's ruling is either binding or non-binding according to the agreement of the parties. Slap-bet commissioners and arbitrators make a judgment call about an argument, where mediators try to help the parties resolve the argument between each other.
The questionable thing about arbitration is that you can't appeal an arbitrator's decision and there aren't juries in arbitration. A lot of the sale contracts for things we buy nowadays come with an arbitration clause. So, like, if my computer exploded and did damage to my house, I would probably have to go to arbitration for my claim against Apple. But, I don't have the money to hire a team of attorneys, so Apple is very likely to kill me in arbitration, and I'll have to abide by that decision. This topic was a big deal last year when Jamie Leigh Jones was raped and locked in the shipping container in Iraq by co-workers while employed by a Haliburton subsidiary. Her employment agreement had an arbitration clause. Eventually, she was allowed to go to court over the incident, but it took a lot of fighting as far as I know. The Franken Amendment
changed the law so that employment agreements can't prohibit employees from going to court over stuff like that.
Anyway, that's basically what I know. It's a good topic. I could bore you with my knowledge of third-party rights and obligations under arbitration agreements, but for now it's only my potential employers who are cursed with that lecture.