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Question 1
The structure of mediation:
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Incorrect!
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Correct
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Correct While 'willy-nilly,' in addition to being a silly word, may be overstating the case, it is not far from the truth. The basic outlines of mediation are somewhat similar wherever you go, but only in terms of the most fundamental stages. For example, it's obviously necessary to choose a mediator before mediation sessions begin, hence choosing a mediator is always an earlier step in the process. Beyond that, there are a vast number of ways in which mediation may begin, proceed, and end.
Incorrect! While 'willy-nilly,' in addition to being a silly word, may be overstating the case, it is not far from the truth. The basic outlines of mediation are somewhat similar wherever you go, but only in terms of the most fundamental stages. For example, it's obviously necessary to choose a mediator before mediation sessions begin, hence choosing a mediator is always an earlier step in the process. Beyond that, there are a vast number of ways in which mediation may begin, proceed, and end.
Question 2
Courts order mediation:
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Incorrect!
Correct
Incorrect!
Correct Court-ordered mediation is becoming more and more popular, and many court systems now have mediation programs in place. True, even when ordered by a court, mediation is not binding, but that does not prevent courts from encouraging or ordering parties to settle through mediation proceedings.
Incorrect! Court-ordered mediation is becoming more and more popular, and many court systems now have mediation programs in place. True, even when ordered by a court, mediation is not binding, but that does not prevent courts from encouraging or ordering parties to settle through mediation proceedings.
Correct
Incorrect!
Question 3
Usually, one uses the term "mediation agreement" in order to indicate which of the following:
Correct As it is most commonly used, a mediation agreement is an agreement, written or otherwise, to enter into mediation proceedings.
Incorrect! As it is most commonly used, a mediation agreement is an agreement, written or otherwise, to enter into mediation proceedings.
Correct
Incorrect!
Correct
Incorrect!
Correct
Incorrect!
Question 4
Fred Aye's Stairs Company manufactures metal stairs which fit into tight spaces. The units are always custom-made, and are quite costly. Because Fred prefers to spend his time designing stairs and hates wasting time in court, he includes the following clause in every Purchase Agreement which customers must sign when tendering the 75% down-payment: "Buyer and seller agree that any disputes between them will go to mediation before they can try to sue each other. (Fred also prefers to spend his money on fancy shoes rather than pay lawyers to write his contracts!)" Will a court enforce this agreement if a customer tries to sue Fred without attempting to mediate first?
Correct Sellers are limited insofar as the terms to which they can bind buyers, and they are also free (though ill-advised) to write their own contracts. The clause here, though sloppy, seems adequate to put the buyer on notice as to the nature of the agreement. In fact, the agreement didn't have to be in writing at all in order to be enforceable, although a writing is always useful to evidence the agreement.
Incorrect! Sellers are limited insofar as the terms to which they can bind buyers, and they are also free (though ill-advised) to write their own contracts. The clause here, though sloppy, seems adequate to put the buyer on notice as to the nature of the agreement. In fact, the agreement didn't have to be in writing at all in order to be enforceable, although a writing is always useful to evidence the agreement.
Correct
Incorrect!
Correct
Incorrect!
Correct
Incorrect!
Question 5
Fred's son, George Aye takes after his father. He likes fast cars, fancy shoes, and believes himself to be smarter than any lawyer he's ever met. Just like his father, George owns his own business. As a child he loved honey so much that he decided to open his own honey bee farm. He even came up with the name for his farm all on his own: Aye's Bees. George has a head for "bzz"ness, and his farm has grown to hundreds of acres employing dozens of workers. He provides honey for many retailers in the area, who sell it under their own names. For years he has been using the same Customer Agreement which he drafted with his very own hands during his first few months of operation. Learning from his father about the efficiency of mediation, he includes his own version of a mediation clause: "Purchaser hereby acknowledges and recognizes that in the event of any dispute, claim, or cause of action arising out of, or in connection with, Purchaser's dealings, association, or relationship with Seller, the parties shall have the right to mediate said dispute, claim or cause of action prior to seeking redress in a court of law." George was quite proud of himself when he first came up with the language, and has not seen the need to change his contract over the years. When a large retailer suddenly files suit against George claiming that George had been feeding steroids to his bees to increase production, and that the steroids caused a recent shipment of honey to turn to liquid and permanently turn the inside of the truck sticky, George points to the mediation clause. The court, however, doesn't see it George's way, and permits the lawsuit to continue in court. Why?
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Correct The clause drafted by George doesn't REQUIRE mediation, but merely PERMITS it. As in Brennan v. King, the 1st Circuit case discussed in this subchapter, clauses which grant the right to mediate do not force courts to compel mediation.
Incorrect! The clause drafted by George doesn't REQUIRE mediation, but merely PERMITS it. As in Brennan v. King, the 1st Circuit case discussed in this subchapter, clauses which grant the right to mediate do not force courts to compel mediation.
Question 6
Before a mediation session can begin, a mediator must be selected. Because of the important role that mediators play in resolving legal battles, all mediators must be:
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Correct There are no formal requirements for mediators. Active judges are unable to serve because of the rules of judicial ethics which apply to them. Mediators need not have any formal training or prior experience in the law. Of course, their resumes are available prior to selection and underqualified mediators are unlikely to be selected, or even made available by mediation service providers.
Incorrect! There are no formal requirements for mediators. Active judges are unable to serve because of the rules of judicial ethics which apply to them. Mediators need not have any formal training or prior experience in the law. Of course, their resumes are available prior to selection and underqualified mediators are unlikely to be selected, or even made available by mediation service providers.
Question 7
Which of the following is NOT a way in which a mediator might be selected?
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Incorrect!
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Incorrect!
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Incorrect!
Correct When a court orders mediation, the mediator is often chosen by the clerk, and the mediator's identity might not even be known by the judge. In these cases, the parties involved get no say in who mediates the case. In private mediation, there are numerous ways in which the mediator might be selected, and sometimes one party will allow the other party to make a selection, within certain parameters of course.
Incorrect! When a court orders mediation, the mediator is often chosen by the clerk, and the mediator's identity might not even be known by the judge. In these cases, the parties involved get no say in who mediates the case. In private mediation, there are numerous ways in which the mediator might be selected, and sometimes one party will allow the other party to make a selection, within certain parameters of course.
Question 8
Once the mediator is chose, mediation sessions do not always begin right away. Which of the following would NOT be appropriate during the time between selection of the mediator and the first session?
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Correct Although we will see that ex parte discussions between an arbitrator and a party to arbitration are impermissible in most circumstances, this is both permissible and usual in mediation. Very often, much of the mediation consists of a meeting between the mediator and one party, then a meeting with the other party, back and forth in an effort to bring them together in agreement.
Incorrect! Although we will see that ex parte discussions between an arbitrator and a party to arbitration are impermissible in most circumstances, this is both permissible and usual in mediation. Very often, much of the mediation consists of a meeting between the mediator and one party, then a meeting with the other party, back and forth in an effort to bring them together in agreement.
Question 9
True or false: Mediation usually ends when the parties and mediator admit a deadlock or when the parties reach a settlement agreement.
Correct These are the usual ways in which mediation ends. On occasion, of course, one party wants to continue discussion but the other party does not, or some other event brings the sessions to a close.
Incorrect! These are the usual ways in which mediation ends. On occasion, of course, one party wants to continue discussion but the other party does not, or some other event brings the sessions to a close.
Correct
Incorrect!
Question 10
Once the parties reach an agreement during mediation their process is at an end.
Correct
Incorrect!
Correct Even when an agreement is reached in principle, there remains work to be done. Often, the mediator will assist the parties in drafting the settlement agreement. This does not mean that the mediator herself drafts the agreement; rather, as the parties go through the process of writing and revising the document, the mediator continues to help them stay on course and helps ensure that this final part of the process goes as smoothly as possible. Minor differences in wording can make tremendous differences in a contract, and though the parties may have agreed that the defendant should pay $5,000 every 3 months for the next 5 years, for example, the settlement agreement will then have to include terms regarding method of payment (check' certified funds') late payments, breach, etc.
Incorrect! Even when an agreement is reached in principle, there remains work to be done. Often, the mediator will assist the parties in drafting the settlement agreement. This does not mean that the mediator herself drafts the agreement; rather, as the parties go through the process of writing and revising the document, the mediator continues to help them stay on course and helps ensure that this final part of the process goes as smoothly as possible. Minor differences in wording can make tremendous differences in a contract, and though the parties may have agreed that the defendant should pay $5,000 every 3 months for the next 5 years, for example, the settlement agreement will then have to include terms regarding method of payment (check' certified funds') late payments, breach, etc.