Download Non-Binding Evaluation: ADR Process for Dispute Resolution and BATNA Clarification and more Study notes Conflict Management in PDF only on Docsity! 129 Lesson 39 NON BINDING EVALUATION Quotation “A little inaccuracy sometimes saves a ton of explanation.” H. H. Munro We will learn 1. Nonbinding evaluation as a class of ADR that brings out merits and demerits of the disputes. 2. Advantages and disadvantages of non-binding evaluation compared with other forms of ADR. 3. Appropriate uses of nonbinding evaluation. Lawyers with adversarial attitude like non-binding evaluation. Non-Binding Evaluation Non-binding evaluation is a group of processes used in legal disputes to evaluate the likely outcome of the dispute being taken to court. It is also called mixed or ‘hybrid’ forms of ADR since it contains the characteristics of both negotiation and adjudication. It is a form of assisted negotiation. It consists of a hearing followed by an evaluation award which is advisory only. It is an assessment of strengths and weaknesses of both disputants. In adversarial legal system, it is considered the best ADR. Disadvantage: Following are the disadvantages of non-binding evaluation. 1. It encourages an adversarial perspective without providing certainty of adjudicated outcome. 2. The complexity and formality of the process is variable. 3. The process of evidence and testimonies may be different for different cases. 4. Outcome may be a single decision or a range of decisions. 5. Non-binding evaluation is a BATNA clarification. Varieties of Non-binding Evaluation Following are the various kinds of non-binding evaluation. 1. Non-binding arbitration. 2. Minitrial 3. Summary jury trial. 4. Neutral evaluation. 5. Dispute review board docsity.com 130 BATNA clarification for those in a position to settle Typically, no outcome per se; observations of hearing provide BATNA clarification to those with authority to negotiate settlement; advisory award may be issued by neutral if no settlement reached Typically, oral arguments; may also be some evidentiary showing Corporate executives with authority to settle; may also be a neutral moderator Minitrial General BATNA clarification Arbitration award, advisory only; may be oral, written, or both Oral arguments; occasionally exhibits and informal testimony (as in arbitration) Arbitrator, who may be an attorney, a retired judge or an ADR neutral Nonbindin g arbitration What is the process useful for? Nature of outcomeWhat is typically presented? Who is typically the neutral? Process BATNA clarification; expert empowerment Assessment of the strengths and weaknesses of each sides case; may include advisory award Typically, oral arguments Experts in technical area of dispute, or lawyers with expertise in the sort of dispute being litigated Neutral evaluation Teasing out of complicated factual issues (as in class actions/products liability); BATNA if jury trial expected; “day in court” for litigants Nonbinding verdict Abbreviated version of litigated case Members of the jury pool as a adjudicators; judge or retired judge as moderator Summary jury trial docsity.com
