1. SYSTEMS DESIGN November 2002 Fordham School of Law Scanlon

2. 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

3. 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)

4. PRIVATE CONTEXT Pre-dispute –Dispute Resolution Clauses: Multi-tiered or Multi-Step Post-dispute –Toro example

5. MULTI-TIERED or MULTI-STEP CLAUSE Pre-dispute Features Usage

6. 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

7. 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

8. 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

9. Interest-Based Procedures – Negotiation – Mediation (valuable means to ensure that interests are thoroughly considered before a dispute turns into a lawsuit) DESIGN SEQUENCE

10. 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

11. Low-Cost Back-Up Procedures –Arbitration (conventional, expedited, final offer) “Marketing” of Design System –motivation, skills, resources DESIGN SEQUENCE

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

13. DUE PROCESS CONSIDERATIONS –Neutrals –Payment –Pre-dispute vs. post-dispute –Remedies –Notice –Others

14. How to evaluate systems? Criteria MONITORING

15. EMPLOYMENT PROGRAMS Private Case law Recent statutory developments

16. PUBLIC CONTEXT Court Programs (e.g., Mandatory Mediation Programs) Mass Claims Settlements