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Foundations of Law
Alternative Dispute Resolution
Mediation - How It Works
Advantages and Disadvantages of Mediation

Question 1

Equitable relief is a term which:

Is used in cases involving horses.

Correct

Incorrect!

Refers to the period between mediation sessions during which parties may consult their legal teams.

Correct

Incorrect!

Is an archaic phrase for what we now call mediation.

Correct

Incorrect!

None of the above.

Correct When a party requests that the court order someone to do something, or refrain from doing something, she is seeking equitable relief. In other words, rather than asking for money, the party is seeking the court to compel action.

Incorrect! When a party requests that the court order someone to do something, or refrain from doing something, she is seeking equitable relief. In other words, rather than asking for money, the party is seeking the court to compel action.

Question 2

Compared to a trial, mediation is usually:

Quicker.

Correct

Incorrect!

Cheaper.

Correct

Incorrect!

More flexible.

Correct

Incorrect!

All of the above.

Correct These are just some of the oft-cited benefits of mediation. Other benefits include: the ability to raise new issues in mid-stream (revise scope of conflict); greater flexibility in outcomes and settlements; general simplicity of the proceedings as compared with formal legal proceedings.

Incorrect! These are just some of the oft-cited benefits of mediation. Other benefits include: the ability to raise new issues in mid-stream (revise scope of conflict); greater flexibility in outcomes and settlements; general simplicity of the proceedings as compared with formal legal proceedings.

Question 3

The best way to collect information from your opposing party in mediation would be to:

Use your own disclosure of information as a bargaining chip and rely on your opponent's good faith.

Correct There is no formal discovery process in mediation, but information is regularly exchanged. To the extent that the opposing party is reticent, strategic disclosure of your information might be called for. Because there is no discovery, a court cannot help, and a mediator cannot make the session contingent on your opponent's openness. You, on the other hand, may walk away from mediation if your opponent withholds information in bad faith.

Incorrect! There is no formal discovery process in mediation, but information is regularly exchanged. To the extent that the opposing party is reticent, strategic disclosure of your information might be called for. Because there is no discovery, a court cannot help, and a mediator cannot make the session contingent on your opponent's openness. You, on the other hand, may walk away from mediation if your opponent withholds information in bad faith.

Wait until the mediation session has started and, if the information has still not been disclosed, ask the mediator to require disclosure as a requirement of continuing.

Correct

Incorrect!

File an interlocutory appeal with the court which mandated mediation to enforce the rules of discovery.

Correct

Incorrect!

There is no exchange of information during mediation.

Correct

Incorrect!

Question 4

Suzie Lightening is a dancer whose name is her main form of advertising. Recently, she discovers that a song makes frequent use of her name in the lyrics, and is in fact called "Suzie Lightening." As it stands, one cannot copyright a name or a title. Seeking to change this she files a suit against the artist's estate (the artist has passed away). Suzie wants to (A) stop this song from being played or sold, (B) receive monetaryy damages for harm already done to her reputation, and (C) establish the ability to copyright her name and prevent others from using it in the future. Which of these can NOT be achieved if she settles the case through mediation.

A

Correct

Incorrect!

B

Correct

Incorrect!

C

Correct Mediation settlements cannot establish precedent and have no effect on present law. Therefore, if Suzie wants to prevent future use, she must win a case in Federal court which could then affect copyright law.

Incorrect! Mediation settlements cannot establish precedent and have no effect on present law. Therefore, if Suzie wants to prevent future use, she must win a case in Federal court which could then affect copyright law.

All of these goals will be met if she strikes the right deal due to mediation.

Correct

Incorrect!

Question 5

In which of the following situations is mediation least appropriate?

A slip and fall case where the defendant has admitted liability in negotiations but the parties cannot agree on a measure of damages.

Correct

Incorrect!

A bitter battle between brothers who refuse to budge, or even talk to each other, and who have instructed their lawyers to act similarly.

Correct Many students were likely tempted by answer D, but there are numerous situations in which mediation takes place despite the complexity of the case or the number of parties involved (peek ahead to Chapter 6, Subchapter 2: The Clergy Cases & Meddlesome Mediators). The brothers who won't budge are unlikely to be helpful to each other during the voluntary discovery process preceding mediation sessions, and are less likely to arrive at a negotiated mediation settlement than the parties in the other answer choices.

Incorrect! Many students were likely tempted by answer D, but there are numerous situations in which mediation takes place despite the complexity of the case or the number of parties involved (peek ahead to Chapter 6, Subchapter 2: The Clergy Cases & Meddlesome Mediators). The brothers who won't budge are unlikely to be helpful to each other during the voluntary discovery process preceding mediation sessions, and are less likely to arrive at a negotiated mediation settlement than the parties in the other answer choices.

A dispute between two neighbors regarding the joint use of a private road giving them access to the street.

Correct

Incorrect!

A complex litigation involving numerous plaintiffs and defendants.

Correct

Incorrect!

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