Group v. Initiative Simulation/Role-Play

What this is:

Every semester the introduction to dispute resolution class has an arbitration role-play. In addition, the Arbitration class has a role-play. This handout goes over one of those role-plays.

What purpose this Role-Play serves:

It is provided to help expose you to the basic concepts of arbitration and to help you remember them.

You should learn:

That an arbitration is different from a mediation. That arbitrators do not know what the critical facts are and have to decide which critical facts are more likely than not.

For more information:

Talk to a student who took the class last year about how their role-play went.

The Role-Play

Background Facts:

The Educational Materials Marketing Group (the EMMG or "the Group") markets educational materials to primary and secondary schools - especially to high schools. It sells textbooks, handouts, videotapes, movies and other materials, both bound and in the form of photocopy masters.

The business year runs from June to March. Every March the company has a week of meetings and reviews and then the 200 employees are given their bonuses, commission overrides and incentive pay and then everyone takes a two month "vacation." There is about a 25% attrition so that every June about 150 people come back and in the two month period about 50 people are hired.

This year, in the "meeting week," the week before bonuses were distributed, one of the meetings featured an attorney. There were open bags of Doritos and boxes of donuts on the tables along with forms. Each form had fifteen dollars (in one dollar bills) attached. The forms were an employment contract that included a covenant not to compete and an arbitration clause. There were signs not to eat the Doritos or the donuts unless you had signed the documents. Those who signed also got to keep the fifteen dollars. Those who did not sign, were fired. Everyone signed.

The forms were all put into one of the two file cabinets in the employee break room. The cabinets are used for whatever miscellaneous papers are generated that have no other place to go. As new extraneous paper is generated at the Group, it is not uncommon for someone to go through the file cabinets, throw out older matters, and put the new memos, etc. in the place of the material thrown out.

In June, a head count turned up a total of 125 employees, after accounting for bumper crop of new hires. Across the business plaza where the EMMG has its offices, a new business with 125 employees opened up - the Mediation Educational Initiative (MEI or "the Initiative") - and almost all of those 125 employees had been EMMG employees only two months before. In addition, all of the employment contracts were missing. No one knows where they went or what happened (and those contracts are gone for good). The attorney who was selling various forms to other firms in the area has disappeared and can not be found and was not successful in selling any other local business with the same forms. The exact forms are not available. Even if the attorney had not gone on to her reward, she would not have remembered which forms she sold or used.

The Initiative specializes in helping school districts write applications for federal and state grants for training and then provides sets up programs and teaches teachers and counselors how to provide dispute resolution (peer mediation) training for their students. As a part of providing training, the Initiative provides photocopy masters of materials at no additional charge.

The Conflict:

The Group sued the Initiative for breach of the covenant not to compete and to have the matter referred to arbitration before the Alternative Arbitrations Group (the AAG). The Initiative has counterclaimed for harassment (sexual, racial and other).

The Group wants 100% of the business and written materials of the Initiative turned over to the Group, for Initiative members to service the accounts until the projects are finished at the members' own expense, attorneys fees, costs, interest and punitive damages.

The Initiative wants attorneys fees, costs, interest, compensation for the mental anguish and other harassment related damages of specified members (both actual and exemplary), and a declaration that its business is outside the scope of the covenant not to compete.

The Players/Assignments:

The AAG

The AAG is represented by a secretary (who schedules the process) and three arbitrators. In the advanced role-play, the secretary may be an excluded role.

The Group

The owner, the owner's attorney, two supervisors and current employees who were at the "Dollars and Donuts" day will appear on behalf of the Group. These will be the people who can testify to the contents/meaning of the contracts and covenants and about the facts in the harassment.

The Initiative

A collective board representative (an owner), an attorney, and ex-employees of the Group who can testify to the harassment and to the contents/meaning of the contracts and covenants.

The Process:

If a secretary is used, there will be a preliminary conference and an exchange of documents (both sides will disclose at this time that they do not have copies of any relevant documents. Neither has the contracts and the Initiative has not yet closed contracts in writing nor has generated any income at this point.).

The arbitrators will convene the matter and the attorneys will give opening statements. If the opening statements run too long, the arbitrators will exercise control of the process.

The Complaining party (the Group) will then call witnesses. Each witness will be called on direct, and then cross-examined. After the Group has called its witnesses, the Initiative will call its witnesses (the Initiative's attorney questions Initiative witnesses on direct and the Group cross-examines them). The parties may then recall witnesses in rebuttal. This role-play is unusual in that all the witnesses are also parties, so they may not be excluded from the proceedings.

After both sides have been allowed rebuttal, they then give their closing arguments. Ten to fifteen minutes a side should be expected. The Group goes first, then the Initiative, then the Group finishes. In finishing, the Group should only address things that came up in the Group's opening or in the Initiative's arguments and should not introduce new matters. If they introduce new matters you may wish to consider allowing the Initiative 3-4 minutes for a rebuttal or excluding that argument.

Everyone will then write an arbitration award. Remember, if you can't decide, if no story seems "more likely than not" to you, award nothing. Nothing is an award just as much as something is. Each side has the burden of proof, of making it more likely than not, for the evidence relating to the things they want.

In the advanced class, after running through the simulation once, the parties will change sides and roles and will do it again, supervised with breaks for questions, comments and specific role-plays of specific issues (e.g. objections, hostility, etc.). The initial practice run should take three hours or less to organize and practice. (Allocate 2.5 hours). The follow-up, with break-out sessions, should take about three hours (allocate up to 3.5 hours).

Grading and other Issues:

This is a straightforward role-play. One of the major points of the role-play is to expose you to a major feature of arbitration - the arbitrator(s) being forced to determine what the truth is in the face of conflicting testimony and in the face of not knowing what the "real facts" are.

You are also expected to practice the parts of an arbitration and pay attention to what is going on. You are not graded on your public speaking skills and not expected to bring anything new or creative. The more straightforward you can be (within the bounds of feeling free to invent facts to the extent that you think your invention is believable and consistent), the better.

Other potential assignments:

Call the one of the local Better Business Bureaus. Identify yourself as a class member who has been assigned to call up and ask about how the BBB trains and assigns people to participate on its arbitration panels (they provide free training once a year for their volunteer panels). If you have to call more than one to get information, note which of the local BBBs are the most professional and which have replies or service that might make you question their services.

Call the EEOC offices and ask to speak to their ADR/Mediation co-ordinator. The Dallas program is probably the most successful program in the United States (at least when the federal litigators are talking about it in Austin). Ask them how they trained for their job, what skills they found the most useful in preparing for their job, and what materials they have available about their services (they have some very nice handouts). You may also want to ask them about what issues are created by having the best program in the country (success causes problems just like failure does).

Call the Federal Justice Department's Labor office here in Dallas. The Federal Department of Labor has a mediation specialist, a non-attorney position filled at GS-8 last year. Ask the person who has the position what their current GS rank is (to get an idea of the promotion potential), what training they had, what the competition was like for their job (and what they think set them apart in obtaining the job) and about how their program (Dallas Office) is doing in mediating labor issues and conflicts.

This Website is by Stephen R. Marsh
Contact Information at:
http://adrr.com/smarsh/