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Description
Flashcards by Jean Ramsay, updated more than 1 year ago
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Created by Jean Ramsay
about 5 years ago
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| Question | Answer |
| In Vera's opinion what is the most powerful tool that you can develop in your personal and professional life? | Mediation |
| What is Alternative Dispute Resolution? | A procedure for settling a dispute by means other than litigation, such as arbitration or mediation (ADR) |
| What does it mean to work jointly with one another? | To collaborate |
| What is a negotiation? | Consensual bargaining process in which parties attempt to reach agreement on a disputed or potentially disputed matter...without intervention of a third party... |
| What is mediation? | A method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution. |
| “...The issue is not tearing apart what works, but rather making our agreement work better... Economic Minister, Mexico Ildefonco Guajardo Villarreal, Aug.2018 What does this statement exemplify? | Global Positioning |
| What are legal professionals moving away from? What does this result in? | Adversarial system. This results in a growing need for ADR and paralegals who provide ADR services. |
| What are paralegals required to inform their clients of? | Alternative methods to resolving disputes |
| How did ADR arise and why is it so popular? | ADR arose out of the adversarial system becoming inaccessible to the average person. |
| What is the rights based model in ADR? | -individualistic approach -individual rights protected against the assertion of other's rights -focus on winning, tenacity, and avoiding cooperation to push clients rights ahead of all others -traditional adversarial lawyer |
| What is still happening even though many cases settle out of court? | Inaccessibility of justice system, trails are unattainable for many |
| *What does s.7 of the Charter mean? | right to fundamental justice- reasonable access to law in a free and governed society according to the rule of law |
| What are some factors that led to the inaccessible legal system and increase in ADR paralegals? | 1.population growth 2.more legislation to help us get along 3.society of litigants 4. peace bonds 5.increase in self represented litigants 6.TV (everyone thinks they are judge Judys) |
| What is access to justice and who has the hardest time accessing justice? | Ability to use the legal system to obtain justice Poorest and most vulnerable with disabilities, language barriers, limited literacy, remote communities, elderly, women |
| In provincial offences how many cases are resolved through ADR? | About 90% |
| *R v Jordan | Cites s. 11 of the Charter which states taht everyone has the right to trial within a reasonable time. Established the requirement that 18 Months to go to trial (from the first appearance date) for Court of Justice 30 Months to go to trial (from the first appearance date) for Superior Court and the remedy is a stay of proceedings. Very impactful case. |
| What is the role of paralegals in ADR? | Affordable alternative to a lawyer. Can support a lawyer Can gather material for the Arbitrator Can represent client in proceedings Can act as a facilitator, arbitrator, or mediator |
| What is a peace bond? | Peace bonds set out conditions that if breached can get you charged in criminal court. |
| What were peace bonds designed for? | Designed to address Criminal Harassment |
| Who can apply for a peace bond? | Anyone |
| What are the two most common reasons for peace bonds? | neighbour disputes and friendships or romantic relationships that have broken down |
| On what grounds can you bring forth a peace bond application? | If you are a person with reasonable grounds to believe that someone will cause injury to you, your spouse/partner/ child or damage your property. |
| What are the steps to the peace bond hearing process? | 1. The complaint. You go before the JP and swear an information. 2. The defendant is issued a summons to attend court 3. Provincial prosecutor intervenes and obtains the disclosure from the complainant for the defendant 4. Prosecutor tries to negotiate conflict 5. if unsuccessful a hearing date is set (show cause- Defendant argues why they shouldnt be entered into a peace bond) 6. court orders the defendant to enter a peace bond if they believe that it is reasonable that you feel threatened. |
| What are the different outcomes to peace bonds? | 1. the court agrees that you feel threatened and the defendant enters into the recognizance voluntarily 2. after the hearing the court finds that a reasonable threat exists and orders the defendant enter the peace bond (no choice) |
| What is the "Ultimate Solution" and what does it look like in Criminal/Quasi Criminal court versus civil court? | The ultimate solution is negotiation and mediation. In criminal/quasi criminal court it looks like a non judicial pre trial in which you negotiate in front of the JP with the prosecution. In civil court it looks like settlement conferences. |
| In criminal or quasi criminal court is the mediation binding? | no |
| What are the goals of peace bonds? | 1. to minimize the trauma to the participants 2. minimize $$$ costs 3. utilize the juducial/ legal resources in the most efficient way possible (more trials = more employees to pay) |
| *What is the goal of ADR? | Successful, early, peaceful resolution based on RELATIONSHIP MANAGEMENT and PRINCIPLED NEGOTIATION |
| What are the elements of relationship management? | 1. recognition of emotion 2. reframing (be positive) 3. communication and trust 4. persuade |
| What are the elements of a principled negotiation? | 1. separate the problem from the people 2. brainstorm options to resolve the problem 3. engage the participants in analyzing the options for a win win situation |
| What causes conflict? | 1. basic needs 2. interest based needs 3. identity based needs |
| According to Maslow what is the most basic human need? | survival |
| Name Maslow's pyramid of human needs in order. | From Most Basic to Most Complex: 1. physiological needs 2. safety 3. love and belonging 4. esteem 5. self actualization |
| What is conflict? | Conflict is the incompatibility of goals between 2 or more parties |
| How does conflict happen? | 1. someone prevents you from getting what you want 2. someone has an opposing position 3. differing interests |
| When a client wants to confront an issue or respond to an issue in the legal system who is called in? | Mediator, lawyer, paralegal, judge, law clerks, support staff etc |
| What is suspension? | Suspension is detaching oneself from the conflict by taking a breath, putting it on hold, 24 hour rule etc |
| How can a paralegal practice suspension in court? | by suggesting an adjournment |
| What is an example of recognition of emotion? | "I hear you... it matters" |
| What is an example of reframing? | Reframing a negative statement to a positive or optimistic statement |
| What are 2 examples of positive communication and trust? | Openness, active listening |
| What helps you to be better at persuasion in ADR? | Understanding your case. Being prepared. |
| What is required by the LSO. If not ________ the behaviour can escalate and lead to an unproductive negotiation. | civility |
| Give some examples of the needs that relate to Physiology, Safety, Love and Belonging, Esteem, and Self actualization | Physiology- food and water, shelter Safety-security of body, employment, family, etc Love and Belonging- friendship, sexual intimacy Esteem- self esteem, confidence self actualization- morality, creativity |
| What is homeostasis? | The ability of a living organism to keep the conditions inside themselves the same despite changes to the condition around it. Example: if you are hot you take steps to cool down |
| *Why is some conflict necessary? (4) | 1. brings about change 2. stimulates creativity 3. improves relationships 4. encourages re-evaluation |
| What are 3 examples of ineffective behaviour in conflict resolution? | yelling, blaming, threatening, showing you are angry, firing off an email, refusing to speak to the other party |
| What can make conflict resolution more complex? | The social and cultural influences that influence the other party. |
| *what is the goal of ADR? | arriving at the best possible outcome |
| How do you achieve the goal of ADR? | 1. understand the conflict 2. deconstruct the conflict 3. help your client see the other perspectives 4. help your client to be in the right frame of mind for productive conversations |
| What are 4 identity based needs? | Need for: meaning community intimacy autonomy |
| What are the core concerns that reflect human wants that are important to pretty much everyone in a negotiation (5) | 1. appreciation 2. affiliation- having connections with others 3. autonomy- freedom to make own decisions 4. status- being acknowledged by a certain status in society 5. role- having a role that is valuable and fulfilling |
| What are some of the benefits of having conflict resolution skills ? | 1. you can better control your business and personal relations 2. it is a better way to resolve a conflict (without a lawsuit) 3. more likely to end in a win win 4. helps preserve relationships between parties 5. reduces stress and the possibility for future conflict |
| What is the goal of ADR in the context of paralegals? | To avoid litigation by coming to a negotiated settlement To get your client a lesser penalty |
| What does "going to the balcony" mean? | It is a form of mental detachment that allows you to reflect on the situation calmly. Ex. if opposing council sends you a snarky email you step away from the computer and get some fresh air and really think about your response before sending it. |
| What are the 5 different kinds of conflict? | 1. interest conflicts 2. relationship conflicts 3. data conflicts 4. structural conflicts 5. moods (I(van) R(eally) D(igs) S(alty) M(ochas) |
| What are the key points of relationship conflicts and what is the best intervention for them? | fed by miscommunication or persistently offensive behaviour. Appropriate way to resolve is by setting procedural guidelines, ground rules that everyone buys into. |
| What is a data conflict and what is the best way to address one? | A data conflict occurs over misinformation or information about what is relevant or how it should be collected/ interpreted. Ie. You worship how is this relevant? A good way to intervene in a data conflict is by seeking an agreement on what is important and how to collect information. You can agree to let an outside expert decide if you cant agree or decide upon what criteria you will use to determine what is valuable information. |
| What is an interest conflict and what is an appropriate intervention? | People in an interest conflict believe they are in competition and might argue because they feel they arent being treated fairly (arent getting the fair amount) An appropriate intervention could be getting each party to clarify what they need, develop solutions to meet these needs, make trade offs, or think creatively together about other solutions. |
| What is a structural conflict and what is a good way to intervene in one? | Structural conflicts are caused by destructive patterns of behaviour or interaction like unequal control/ownership, or unequal power/authority, time contraints. An appropriate intervention is clearly defining role, relocating control, agreeing upon a mutually beneficial decision making process, interest based not positional, change time constraints. |
| What is a value conflict? | Value conflicts arise because parties have different criteria for valuing ideas or behaviour (culture, religion, lifestyle. ) |
| What is a mood conflict? | Brought by external factors not at all related to the other party but can significantly influence the conflict. Ie. sick child, outstanding bills, the example of the paralegal that told Vera "You love your job dont you" but he had a sick child and then apologized |
| What is zero sum thinking? | The theory that resources are limited and people must contend on a win lose basis. Eat or be eaten. Only one can win. Leads to entrenched positions and the use of rights based tactics. |
| What are the styles of conflict resolution? | Competing, collaborating, compromising, avoiding, and accomodating |
| Competing | the goal is to win. Parties arent concerned about the future relationship |
| collaborating | the parties are willing to work on a solution together. The parties have on ongoing relationship or there is the possibility for an ongoing relationship. |
| compromising | both parties are committed to settle and the agreement must be reached within a certain time frame. It is usually used as a last resort |
| avoiding | little chance of success, the issue is not worth pursuing. Lots of emotion involved and the parties need time to cool off |
| accomodating | happens when one parties has come to the realization that your case is not as strong as theirs. the preservation of the relationship is paramount |
| attribution theory | attributing meaning to the behaviours of others and making inferences about the behaviour of others. These are assumptions and they can be wrong |
| What are the types of attribution? | internal, external, and self serving bias. |
| internal attribution | belief that behaviour can be explained by personal characteristics like one's personality or motive |
| external attribution | belief based on situational factor beyond their control like missed bus or cant find a parking spot |
| self serving bias | assign internal attributions when we win and external attributions when we lose... ex. i won because i am a great person but i lost because it was raining |
| what are the reasons for interest based needs conflict | substantive, procedural and psychological |
| systems theory | how processes, things, and events can be interrelated cant just look at one side of the dispute or a single moment in time |
| what are 4 positive communication skills? | appropriate speaking skills, appropriate use of non verbal communication, active listening, and ability to relate or empathize with others |
| what are the methods of verbal communication | The goal is to speak assertively and persuasively. The methods are manifest content (the actual words spoken), latent content (implied through body language), and delivery (how you speak) |
| How can you deliver your communication effectively? | Speed (standard pace), tone (respectful and captures the attention of the listener), and articulation (enunciation) |
| what does written communication rely on and what must it be | manifest content , clear and concise |
| What are some of the features of active listening? | Body language- face the speaker, open stance, eye contact encouraging- to show that you are interested and keep the other party talking, ask open ended questions and make encouraging responses -ask clarifying questions -silence to draw the speaker out -paraphrasing -reflect -summarize -validate (you matter) |
| When the process is more formal what is more likely to be needed? | you will likely need to prepare an ADR brief |
| * What are the types of verbal communication? | Manifest content. latent content. Delivery |
| What are the three possible modes of response to interpreting non verbal communication | Aggressive- competitive and unwilling to resolve responsive- active listening, collaborative and problem solving non responsive- avoid confrontation, entrenched in their position, unwilling to discuss the issue |
| What are some behaviours that display aggression? | angry, impatient, frustrated, defensive |
| what are some behaviours that display responsive listening | nodding, stroking chin, frequent eye contact |
| non responsive behaviours? | staring into space, arms crossed, packing things up |
| What does silence show the person you are talking to? What about paraphrasing? | silence- draws the speaker out paraphrasing- shows you are listening |
| Why is it important to keep detailed notes? | in case you need to hand the file off, in case of emergency, to docket your time, to clarify if there is ever a misunderstanding |
| How can you use your knowledge of the conflict resolution styles in the paralegal world? | you can look at what style opposing council uses and see how it is working for or against you. You might have to change your style accordingly |
| what are some benefits of negotiation? | it is therapeutic, empowering, makes your client the part of the solution, helps preserve future relationships, judges have limited remedies |
| what are some barriers to negotiation | emotions, ego, entrenched positions, need to save face, miscommunication |
| According to William and Ury what are the three goals for successful negotiation | 1. to produce a wise agreement 2. to be efficient 3. to improve or minimize damage to relationship |
| What are Ury and Fisher's theories of negotiation? | positional and principled negotiation |
| Positional Negotiation | both parties have a starting point, dealer starts high customer starts low, goal is to meet somewhere in the middle, can get locked into a position, can damage relationships (offended by offer) |
| Principled Negotiation | conflict is between each side's needs and desires. Open to new ideas and the goal is to reach a fair and mutually acceptable agreement |
| What are the 4 steps of principled negotiation | 1. separate the people from the problem 2. focus on the parties interests not their positions 3. invent options to solve the problem 4. use objective criteria to solve the problem |
| what are examples of objective criteria? | market value, expert opinion, precedents, court decisions |
| what is your job as a paralegal? | 1. evaluate the problem 2. understand the problem 3. seek out underlying interests of the client and the other party |
| *Getting to Yes. The 3 goals for successful negotiation | 1. produce a wise agreement 2. be efficient 3. improve or minimize damage to relationships (neighbours) |
| Key to Principled Negotiation: Goal** | FAIR and MUTUALLY ACCEPTABLE agreement |
| What does an ADR brief contain | information the arbitrator needs, statement of issues like the legal issue in dispute and the interests of the parties, documents you have to back up your argument |
| important things to include in a settlement agreement | make sure that both parties agree with the contents, use plain language and specify the details |
| what to include at a judicial pre trial | give the court options for a solution which shows that you are collaborative, relevant facts and law, how the matter should be resolved, the number of witnesses you want to use |
| what do you have to do to prepare your client to negotiate? | manage your clients expectations, understand your clients interests, find your target point, understand the other parties interests, rehearse the negotiation |
| Why is it important to prepare your client? | helps you to be successful, helps your client to feel more at ease, manages the expectations of the client, nobody likes surprises |
| How do you develop your clients interests? | Ask them what they want. narrow down the issues. Prioritize the issues. Find out what you can give up. |
| What is the difference between options and alternatives? | Options are the possibilities. Alternatives are different courses of viable actions if the negotiation falls through |
| Give some examples of open ended and clarifying questions | Open ended- What do you mean by? Clarifying: Can you explain what you mean by? |
| Example of a consequential question and a justifying question | C- What would happen if... J- Have you changed your mind about.. |
| What is a target point | the bottom line that your client feels would be acceptable |
| Bottom line approach downfalls | rigid, could set expectations too high, dangerous if you dont have many alternatives |
| BATNA | best alternative to a negotiated agreement possible alternatives if deadlock or the negotiation falls through |
| WATNA | worst alternative to a negotiated agreement, worst alternative if the negotiation fails, helps the client understand what is the most important |
| What is a soft negotiation style and a hard negotiation style | hard- agressive, high demand, few concessions , high risk to client, possible retaliation from other party soft- cooperative, generous, risk of exploitation or giving in too easily |
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