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Course Descriptions

Course Descriptions

Alternative Dispute Resolution Clause Drafting (Fall 2017)

Course Description

Alternative dispute resolution (“ADR”) is an efficient and pragmatic means of planning to address and resolve, and subsequently addressing and resolving, disputes. ADR should be carefully considered and utilized by transactional lawyers to be part of a transaction contract to govern potential disputes and by trial lawyers to govern actual disputes. When negotiating and crafting an ADR agreement in either instance, it is essential to understand that merely sufficient generic ADR language may be less than ideal, and that doing so instead should be an opportunity to design and define a process particularly suiting the context and needs of the parties. Careful lawyers should identify and draft recognizing anticipated, and the potential for unanticipated, consequences of a contemplated business transaction or actual dispute and the nature of the parties and their relationship. This course teaches students essential ADR skills to identify, negotiate and draft specific to a contemplated business transaction or actual dispute. 

Course Requirements & Guidelines

A.    Class Preparation and Participation

Class discussion will commence with the assumption that everyone is thoroughly familiar with the assigned materials and is prepared to participate in discussions in a professional manner. 

B.     Attendance and Classroom Behavior

Regular and punctual attendance is expected of all students.  Please note that all communication and entertainment devices such as cell phones, iPods, and iPads are to be turned off and kept off throughout the class session. However, students are permitted to take notes on laptops during class.

C.    Grading Criteria

There will be several written exercises, some in-class and some take-home.  These exercises, together with class attendance and active and meaningful contributions to class discussion, will provide the basis for the final grade.

 Course Outline

Day 1: Introduction to Clause Drafting

A.    The Origins of Disputes (Ch. 1 of Folberg & Golann Mediation casebook

Why ADR? – A theory of dispute resolution)

B.     The Dispute Resolution Landscape

o   Negotiation

o   Mediation

§  Court-connected mediation

§  Private mediation

§  “Med-arb”

o   Court-hosted settlement conference

§  Contrast mediation and settlement conference

o   Early neutral evaluation (ENE)

§  Contrast ENE, settlement conference, mediation

o   Arbitration

§  Non-binding arbitration; compare to mediation (mediator proposal)

§  Court-connected arbitration

§  Domestic arbitration

§  International arbitration

o   Litigation/trial

§  Contrast arbitration and trial

C.     Ways in Which Parties may Direct Process Choices

o   Pre-dispute transactional examples

o   Post-dispute examples

o   Embedded fora (e.g. uninsured motorist arbitrations prescribed by Cal. Ins. Code)

o   Process mediation (guided choices)

o   Dispute design as a concept

D.    Written Exercise (based on hypothetical case distributed in class)

o   Debrief exercise

o   Finalize clause and send to earambula@raklaw.com.

PLEASE BRING TO CLASS 2 AN ADR CLAUSE YOU RECENTLY SIGNED AND BE PREPARED TO DISCUSS WHAT IT IS YOU AGREED TO

Day 2:  Drafting Pre-dispute Clauses

A.    Deconstructing an ADR Clause: (PowerPoint):

o   Scope of arbitration

o   Parties to arbitration agreement

o   Institutional v. non-administered arbitration

o   Choice of rules

o   Sole arbitrator v. tripartite arbitration panel

o   Governing law

o   Venue

o   Discovery

o   Fees and costs

o   Court review

o   “Bells and whistles”

o   International elements

o   Consumer arbitrations (legal differences)

o   checklist

B.     Your Imbedded ADR Agreement

o   What?

o   How?

o   Where?

o   Unique features?

C.     Exercise (negotiation and drafting of a term sheet)

o   A hypothetical case will be provided – teams of two will negotiate and draft a “term sheet” with another team for the dispute resolution provision to be included in a transactional document

o   Odd numbered teams represent “Century”

o   Even numbered teams represent “Redmonds”

D.    First Discussion of Submission Agreements

o   Differences from pre-dispute clauses

o   Range of process elements

For class 3:  Draft (on your own) the clause that you negotiated in your term sheet.  (It will be discussed in Class 3).  Send to earambula@raklaw.com.

Day 3:  Drafting Post-Dispute Submission Agreements

o   Debrief Class 2 Clause Drafting Exercise

o   Review process elements of a post-dispute submission agreement

o   Hypothetical case (discussion)

§  Domestic dispute

§  International dispute

o   Hypothetical case (exercise)

Homework/Final – draft (on your own) a Submission Agreement based on the hypothetical case (to be distributed at the end of class). Send the completed clause to earambula@raklaw.com.

Course Details

  • Unit Value: 1
  • Grading Options: CR/D/F Only
  • Schedule: 8/26, 9/9 9/16 8:00 - 12:00 noon
  • Exam: None
  • Writing Requirement: No
  • Skills/Experiential Unit Requirement: Yes
  • Participation: Required
  • Enrollment Limitation: 36 students