However, Aaron is known to have a bad temper and has been fined by the League twice in the past year for his temper. He has also been accused of regularly provoking bar fights. The contract between Aaron and Coca-Cola has a morals clause. That is where the dispute begins. The Company contends that Aaron’s actions, which include accusations of disorderly conduct, confirmed claims that he is a “deadbeat dad,” and excessive gambling, clearly demonstrate a breach of the morals clause. Aaron admits that he likes to party but says he did nothing wrong–he was legally gambling in Las Vegas and has not been convicted of any assaults.

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Please review the attached mediation fact pattern. Pretend you are the mediator and propose some basic settlement terms. 2-3 paragraphs will be sufficient.

Mediation Fact Pattern

The Contract and the Dispute

Aaron Flintstone is a young basketball player who has an endorsement deal with Coca-Cola. In his rookie year, he was one of the top scorers in the league. Aaron is extremely popular with young men, one of the company’s target markets. His jersey is a best seller and as his career progresses, it is expected that he will be offered many lucrative marketing deals.

Two years ago, Aaron and Coca-Cola signed a 10-year endorsement deal, with an option for an additional two years. Aaron made three public appearances for Coca-Cola and appeared in two television commercials for each of the past two years. Two new commercials are planned for this year, and they just finished filming the first one. So far, the marketing spots that feature Aaron have helped the company’s business. But now Coca-Cola and Aaron are having a dispute.

However, Aaron is known to have a bad temper and has been fined by the League twice in the past year for his temper. He has also been accused of regularly provoking bar fights. The contract between Aaron and Coca-Cola has a morals clause. That is where the dispute begins. The Company contends that Aaron’s actions, which include accusations of disorderly conduct, confirmed claims that he is a “deadbeat dad,” and excessive gambling, clearly demonstrate a breach of the morals clause. Aaron admits that he likes to party but says he did nothing wrong–he was legally gambling in Las Vegas and has not been convicted of any assaults.

The Coca-Cola Company’s contract with Aaron Flintstone includes:

1. MORALS CLAUSE: If Talent commits any act or makes a statement which brings Talent into public disrepute, contempt, scandal or ridicule or which shocks or offends the community, or which reflects unfavorably upon Company or reduces the commercial value of the Company’s association with Talent, then that will constitute a material breach of this Agreement, and Company may, at its option, immediately terminate the Talent Agreement.

3. PERSONAL APPEARANCES: In exchange for the payments listed below, Talent agrees to a maximum of 3 personal appearances per year, plus a maximum of 2 commercials per year, to be filmed at the option of the Company.

4. PAYMENT TERMS: In consideration for the agreements in the contract, Company will pay Talent $500,000 per year for the first two years, then $1.5 million per year in years 3-6 and $1.75 million per year in years 7-10.

5. EXCLUSIVITY: Talent agrees not to endorse, or contract with any other maker or distributor of any carbonated soft drinks, waters, sports drinks or alcoholic beverages of any kind during the term of this contract. Talent may endorse or contract with makers/distributors of dairy products and fruit juices during the term of this contract.

 

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Please review the attached mediation fact pattern. Pretend you are the mediator and propose some basic settlement terms. 2-3 paragraphs will be sufficient. Mediation Fact Pattern The Contract and the Dispute Aaron Flintstone is a young basketball player who has an endorsement deal with Coca-Cola. In his rookie year, he was one of the top scorers in the league. Aaron is extremely popular with young men, one of the company’s target markets. His jersey is a best seller and as his career progresses, it is expected that he will be offered many lucrative marketing deals. Two years ago, Aaron and Coca-Cola signed a 10-year endorsement deal, with an option for an additional two years. Aaron made three public appearances for Coca-Cola and appeared in two television commercials for each of the past two years. Two new commercials are planned for this year, and they just finished filming the first one. So far, the marketing spots that feature Aaron have helped the company’s business. But now Coca-Cola and Aaron are having a dispute. However, Aaron is known to have a bad temper and has been fined by the League twice in the past year for his temper. He has also been accused of regularly provoking bar fights. The contract between Aaron and Coca-Cola has a morals clause. That is where the dispute begins. The Company contends that Aaron’s actions, which include accusations of disorderly conduct, confirmed claims that he is a “deadbeat dad,” and excessive gambling, clearly demonstrate a breach of the morals clause. Aaron admits that he likes to party but says he did nothing wrong–he was legally gambling in Las Vegas and has not been convicted of any assaults. The Coca-Cola Company’s contract with Aaron Flintstone includes: 1. MORALS CLAUSE: If Talent commits any act or makes a statement which brings Talent into public disrepute, contempt, scandal or ridicule or which shocks or offends the community, or which reflects unfavorably upon Company or reduces the commercial value of the Company’s association with Talent, then that will constitute a material breach of this Agreement, and Company may, at its option, immediately terminate the Talent Agreement. 3. PERSONAL APPEARANCES: In exchange for the payments listed below, Talent agrees to a maximum of 3 personal appearances per year, plus a maximum of 2 commercials per year, to be filmed at the option of the Company. 4. PAYMENT TERMS: In consideration for the agreements in the contract, Company will pay Talent $500,000 per year for the first two years, then $1.5 million per year in years 3-6 and $1.75 million per year in years 7-10. 5. EXCLUSIVITY: Talent agrees not to endorse, or contract with any other maker or distributor of any carbonated soft drinks, waters, sports drinks or alcoholic beverages of any kind during the term of this contract. Talent may endorse or contract with makers/distributors of dairy products and fruit juices during the term of this contract. Alternative Dispute Resolution Jordan Kieffer BLAW 320 Why might we settle? Making Deals Ted Talk A Civil Action Erin Brokovich Definitions Arbitration: Arbitration is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. Mediation: A form of alternative dispute resolution (ADR) in which the parties to a lawsuit meet with a neutral third-party in an effort to settle the case. The third-party is called a mediator. Settlement: Settlement refers to the legal agreement adopted by opposing parties before or during court proceedings, spelling out the negotiated terms and obligations that all will accept to officially end a dispute. Most civil cases are decided not by trial, but by settlement. Even cases entering mediation or arbitration, instead of a traditional trial, will often choose a settlement deal. Arbitration ❑Third party (arbitrator) makes final decision ❑Mandatory v. Voluntary ❑Final decision (award)- binding ❑Reasons ⮚Quick/inexpensive resolution ⮚Ease court dockets ⮚Expert assistance 5-5 Arbitration – Submissions ❑ Parties agree to arbitration – written AAA Submission to Dispute Resolution Form (Voluntary) Sample Clauses (Voluntary/ContractBased) ❑ Specific matters agreed to arbitrate ❑ Matters for arbitration ⮚Questions of fact ⮚Questions of law ⮚Fact & law ❑ Trend toward arbitration 5-6 Arbitration – Awards ▪Disclosure of findings & reasons • Not needed unless required by statute or agreement ▪Court favors award & broad scope of authority ▪Final on submitted issues – filed with court clerk & enforced by court •Parties bound by award 5-7 Mandated Arbitration ▪ ▪ ▪ ▪ States adopting Speeds up process Many qualified arbitrators Types of cases • <$15,000 • Specific subject matter ▪ Record of proceedings required 5-8 Mandatory Arbitration- Procedures Submit Claim Discovery Arbitrator Determines: ✔Admissibility Of Evidence 8 Months ✔Law/Facts Of Case ✔Objections Hearing 5-9 Voluntary/Contract-Based Arbitration 1) “Pre- Dispute Arbitration Clause” and Lost in the Fine Print – Vimeo Parties Agree To Method By: 2) “Post-Dispute Arbitration Clause” 5-10 Recent Arbitration • DIRECTV, Inc. v. Imburgia, 577 U.S. ___ (2015) • Mandatory Arbitration Clause in contract over disputes—if you want channels, you must sign • Cal App Ct ruled in favor of consumer in that arbitration should not be the only option and should be able to file class action • SCOTUS reversed, noting that case fell under Federal Arbitration Act of 1925 and mandatory arbitration was legal even though it was state court • Decision harshly criticized Judicial Review of Arbitration ❑ Voluntary/Contract-Based ⮚ Award is final ⮚ Findings of fact/law- conclusive ⮚ Limited review by court ⮚ Correct fraudulent/arbitrary actions/against public policy ❑ Statutorily-Mandated ⮚ In accord with procedural/due process of law ⮚ Constitutional challenges ⮚ De Novo Review 5-12 Mediation ▪ Third party assists in resolving dispute – avoid litigation ▪ Parties agree to use ▪ Reduces court caseload – no judicial review ▪ Settlement = mutual choice The Break Up 5-13 Mediation ▪Advantage to Parties •Determine to Pursue •Retain Control of Outcome ▪Disadvantages •No Enforcement •Selection MediatorQualifications 5-14 Mediation Procedures Mediator Opening Statement/Rules Parties • View Statement • Exchange • Discuss Options – Caucus Agreement Written/Signed 5-15 You Don’t Have to Be an Attorney! Kansas Law: The Dispute Resolution Act was specifically drafted to include non-attorneys. There are a variety of disputes, both court related and community related, which can be effectively mediated by a non attorney. The greatest numbers of non-attorney mediators providing this service are doing so in the area of visitation and custody disputes. Many of these mediators have backgrounds in family therapy or counseling. There are also a number of volunteer mediators, particularly in metropolitan areas, who are providing mediation in community settings, small claims, and victim-offender disputes. Famous Settlements https://www.rankred.com/biggest-lawsuit-settlements/ Negotiation at its finest……. Housekeeping is Singing Negotiation and Horses Anatomy of a Civil Lawsuit Jordan Kieffer BLAW 320 Complaint Defined n. the first document filed with the court (actually with the County Clerk or Clerk of the Court) by a person or entity claiming legal rights against another. The party filing the complaint is usually called the plaintiff and the party against whom the complaint is filed is called the defendant or defendants. Complaints are pleadings and must be drafted carefully (usually by an attorney) to properly state the factual as well as legal basis for the claim, although some states have approved complaint forms which can be filled in by an individual. A complaint also must follow statutory requirements as to form. Complaint Anatomy ● Basic elements: ○ ○ ○ ○ ○ Parties Venue and Jurisdiction Proper Facts Cause(s) of Action Request for Relief ● Examples ○ ○ ○ ○ BASIC PLEADING FORMAT [CAPTION] PETITION FOR BREACH OF CONTRACT Plaintiff (name) states the following claim for relief against the defendant, (name): [CAPTION] PETITION FOR NEGLIGENCE Plaintiff (name) states the following claim for relief against the defendant, (name): 1. On College Football Example Defendant Response Options: 1) Nothing — risk default judgment. 2) Answer within 21 days. [CAPTION] ANSWER The defendant answers the petition as follows: 1. Defendant admits the allegations stated in the petition in p 3) Move to dismiss. ; 60-212 Defendant’s Motion to Dismiss Case Management Conference Sets out all of the deadlines in a case, typically includes: ● ● ● ● ● Any mandatory settlement deadlines; Discovery deadlines; Pretrial submissions; Dispositive motions; and Trial dates. Example of a pretrial order. Discovery WHO: The parties (plaintiff and defendant). WHAT: Allows parties to see what evidence is before trial. WHY: (1) Actually find out information (facts); and (2) pin opposing side down to sworn statements and evidence. HOW: Stipulations, Depositions, Inspections, Subpoenas, Written Questions (Interrogatories), Production of Documents (Example: Plaintiff(s) Request for Production of Documents Directed to Defendant(s)), Requests for Admissions, Expert Reports. Check out K.S.A. 60-229 through 60-237. Problems: Ridiculously high costs to complete, advantage to big corporations, and lengthy litigation delays. The Reality 95% or more of the lawsuits filed settle prior to the completion of the litigation process. 5-8 Range of Alternative Dispute Resolution Options 5-9 Reasons for Settlement without Litigation ▪ Costs • Attorney’s fees • Court costs ▪ Personal reasons • Compromise is instinctive • Dislike of conflict • Opinion of others ▪ Business reasons • Bad for business/possible adverse publicity • Sympathetic juries 5-10 Trial Two key features: 1. Most intense manifestation of the adversary system-attorneys try to shape the narrative to favor their clients. 2. Type of trial–bench or jury. Structure of a Trial 1. Jury selection (if any) 2. Opening statements Philadelphia 3. Plaintiff’s evidence (bears the burden of proof) a. Witness testimony (Think back to auto expert in “My Cousin Vinny”) b. Documents (Think back to photo of tire marks in “My Cousin Vinny”) c. Physical evidence (Gloves in OJ Simpson trial) d. Demonstrative – charts, drawings, videos, etc. 4. Defendant’s evidence 5. Rebuttal by plaintiff 6. Closing arguments Rainmaker A Time to Kill 7. Jury instructions (if any) 8. Deliberation – jury retires to jury room, judge takes time to consider decision 9. Judgment/verdict rendered 10.Post-trial motions 11.Appeal (if any) …
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