NON BINDING EVALUATION II:Varieties of Non-binding Evaluation, Advantages and disadvantages of Non-binding Evaluation

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Conflict Management HRM624

Lesson 40

NON BINDING EVALUATION II

Quotation

"Excellence is to do a common thing in an uncommon way". Booker, T.

We have already discussed the following points in the previous lecture. In this lecture we will analyze them

again in detail.

Advantages and disadvantages of non-binding evaluation compared with other forms of ADR.

Appropriate uses of non-binding evaluation.

Legal issues around non-binding evaluation.

Innovative nonbinding evaluation processes including non-binding arbitration (summary jury trial,

minitrial, and neutral evaluation and dispute review boards).

There are a number of varieties of non-binding evaluation. Non-binding evaluation is intended to give each

disputant's legal team a preview at a litigation future, in an effort to give both sides enough information that

their positions will overlap, enabling settlement to take place.

Varieties of Non-binding Evaluation

1. Non-binding arbitration.

2. Minitrial

3. Summary jury trial.

4. Neutral evaluation.

5. Dispute review board

1. Non-binding Arbitration

Non-binding arbitration is the most basic form of non-binding evaluation. Non-binding evaluation simply

consists of an adjudication process in which the out come is not binding. Sometimes non-binding

arbitration is a process chosen by private parties, but often it is a mandatory process ordered by the court.

2. Minitrial

In minitrial, the time and expense of case presentation is minimized through the presentation of a summary

version of the dispute. Minitrials are usually attended by representatives of the disputants who have the

authority to settle the case. After case presentation, the neutral will either issue a non-binding decision or

will discuss strengths and weaknesses with disputant representatives and their advocates.

3. Summary Jury Trial

Summary jury trial is a form of non-binding evaluation intended to promote settlement by demonstrating to

the disputants and their legal teams what would be likely to happen if jury decided the case.

4. Neutral Evaluation

Neutral evaluation is a process in which an expert in the subject matter of the dispute, or a legal expert, is

hired to give an assessment of the strengths and weaknesses of each side's case. Neutral evaluation has

many variations and is known by a variety of terms, used in often inconsistent fashion.

5. Dispute Review Boards

Dispute review boards (also known as dispute resolution boards) are entities created by contract to resolve

disputes as they arise during construction projects. Boards are generally made up of three members

empanelled by the owner and contractor. As disputes arise during construction, they are submitted by

informal hearing process to the review board, which issues an advisory decision in the matter.

The dispute review board process is designed to facilitate the complex relationship among owners,

contractors, and others involved in large construction projects.

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Conflict Management HRM624

Advantages and disadvantages of Non-binding Evaluation

Non-binding evaluation represents an effort to obtain the benefits of both negotiation and adjudication.

1. Compared with litigation

2. Compared with arbitration

3. Compared with mediation

1. Compared with litigation

The most important advantage of non-binding evaluation is probably also its greatest disadvantage, i.e. its

non-binding quality. Non binding evaluation allows the disputants to retain a measure of their autonomy. A

settlement reached after non-binding evaluation is more likely to be accompanied by psychological

ownership than a judgment imposed by the court, because the disputants have freely chosen the outcome

themselves.

Non-binding evaluation is also chosen by disputants because it is potentially cheaper and faster than

litigation. Non-binding evaluation is sometimes touted as an efficiency measure without due regard for

whether, in fact, the presumed cost and time savings will be realized.

Finally, like other forms of ADR, non-binding evaluation is typically a private process. Privacy can have

both advantages and disadvantages. Some disputants may benefit from the privacy, whereas others prefer

that the public be informed of the process and outcome.

2. Compared with Arbitration

In many ways, non-binding evaluation is similar to arbitration: it can seem indistinguishable from arbitration

until the moment when one disputant decides not to accept the decision of the neutral. It should not be

surprising, then, that non-binding evaluation has many of the same advantages and disadvantages of

arbitration. Like arbitration it has a tendency to promote an adversarial, competitive perspective on the

conflict and to promote positional bargaining.

3. Compared with Mediation

The comparison of non-binding evaluation with facilitative varieties of mediation raises the most interesting

questions for conflict diagnosticians. Non-binding evaluation is considered effective in dealing with extreme

differences of fact or law, and it is useful for BATNA clarification: it functions as a dry run at litigation,

enabling attorneys and their clients to get a reasonable estimate of what would happen if the case went to

trial.

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Conflict Management HRM624

Varieties of nonbinding evaluation

What is the

Process

Who is typically the What is typically

Nature of outcome

process useful

neutral?

presented?

for?

Arbitration award, advisory

General BATNA

Oral arguments;

Arbitrator, who may

Nonbinding

only; may be oral, written, or

clarification

occasionally

be an attorney, a

arbitration

both

exhibits and

retired judge or an

informal testimony

ADR neutral

(as in arbitration)

BATNA

Typically, no outcome per se;

Typically, oral

Corporate executives

Minitrial

clarification for

observations of hearing provide

arguments; may

with authority to

those in a position

BATNA clarification to those

also be some

settle; may also be a

to settle

with authority to negotiate

evidentiary

neutral moderator

settlement; advisory award

showing

may be issued by neutral if no

settlement reached

Teasing out of

Members of the jury Abbreviated

Nonbinding verdict

Summary jury

complicated factual

version of litigated

pool as a

trial

issues (as in class

adjudicators; judge case

actions/products

or retired judge as

liability); BATNA if

moderator

jury trial expected;

"day in court" for

litigants

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Conflict Management HRM624

Varieties of nonbinding evaluation

What is the

Who is typically What is

Nature of outcome

Process

process useful

typically

the neutral?

for?

presented?

BATNA

Assessment of the

Experts in

Typically, oral

Neutral

clarification;

strengths and weaknesses

technical area of arguments

evaluation

expert

of each sides case; may

dispute, or

empowerment

include advisory award

lawyers with

expertise in the

sort of dispute

being litigated

Overcoming of

A summary of An advisory decision

A penal of

Dispute

costly

disputes that

leaders or other

review board

impasses and

threatens to

experts in the

(example;

delays created

delay or derail a

field involved,

by disputes

complex

empanelled by

Motorway

that occur

construction

the owner and

construction

during

project

contractor in a

by Turkish

complex

construction

firm)

construction

project

projects

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