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Course Descriptions

Course Descriptions

ADR Clause Drafting (Fall 2019)

Course Description

Co-taught with Jules Kabat; jkabat@raklaw.com 

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

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. 

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.

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.

III. Course Outline

Class 1: Introduction to Clause Drafting

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

      Why ADR? – A theory of Dispute Resolution)

The Dispute Resolution Landscape

Negotiation
Mediation

Court-connected mediation
Private mediation
“Med-arb”

Court-hosted settlement conference

Contrast mediation and settlement conference

Early neutral evaluation (ENE)

Contrast ENE, settlement conference, mediation

Arbitration

Non-binding arbitration; compare to mediation (mediator proposal)
Court-connected arbitration
Domestic arbitration
International arbitration

Litigation/trial

Contrast arbitration and trial

Ways in Which Parties may Direct Process Choices

Pre-dispute transactional examples
Post-dispute examples
Embedded fora (e.g. uninsured motorist arbitrations prescribed by Cal. Ins. Code)
Process mediation (“guided choices”)
Dispute design as a concept

Written Exercise (based on hypothetical case distributed in class)

Debrief exercise
Finalize your 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

Class 2:  Drafting Pre-dispute Clauses

Deconstructing an ADR Clause: (PowerPoint):

Scope of arbitration
Parties to arbitration agreement
Institutional v. non-administered arbitration
Choice of rules
Sole arbitrator v. tripartite arbitration panel
Governing law
Venue
Discovery
Fees and costs
Court review
“Bells and whistles”
International elements
Consumer arbitrations (legal differences)
checklist

Your Imbedded ADR Agreement

What?
How?
Where?
Unique features?

Exercise (negotiation and drafting of a term sheet)

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
Odd numbered teams represent “Century”
Even numbered teams represent “Redmonds”
Debrief exercise

First Discussion of Submission Agreements

Differences from pre-dispute clauses
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

Class 3:  Drafting Post-Dispute Submission Agreements

Debrief Class 2 Clause Drafting Exercise
Review process elements of a post-dispute submission agreement
Hypothetical case (discussion)

Domestic dispute
International dispute

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: 9/14, 9/21 9/28 9:00 am - 1:00 pm
  • Exam: None
  • Writing Requirement: No
  • Skills/Experiential Unit Requirement: yes
  • Participation: Required and graded