THINGS YOU NEED TO KNOW TO CHOOSE THE RIGHT DISPUTE RESOLUTION PROCESS:

There are various dispute resolution processes to choose from. Some disputes may need to be decided by a judge in a public forum. Others may be resolved most efficiently in a private, voluntary setting. Still others may benefit from the advice of a neutral third party.

The type of conflict, the specific facts, the attributes of the disputants, the issues in dispute as well as the urgency of the conflict all influence what dispute resolution process will be appropriate.

When making the decision, some factors will be more important than others. For example, a binding decision may be needed urgently, or, it may be critical to maintain a good working relationship.

Keep in mind that it is beneficial to review the dispute resolution decision. As time passes and information is uncovered or positions change, the process that was originally selected may no longer be right.

The following list describes several of the dispute resolution processes to choose from. Factors that may influence whether it is the right process for you are included.

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ARBITRATION

Evidence is provided to a neutral third person who makes a decision. Disputants typically have some say in who arbitrates, and when and where the arbitration occurs. The arbitrator’s decision may be binding, or, it may be non-binding in which case the parties decide whether or not to accept it. The goal of this process is to persuade the decision-maker that your position is right. The decisions that an arbitrator can make are limited by legislation or the terms of their appointment.

COLLABORATIVE LAW

Collaborative law is one form of negotiation. Disputants and their lawyers enter into an agreement to work together to resolve the conflict. This process is currently used to assist couples who are separating or divorcing and involves a series of meetings between both the lawyers and the parties. At times, other professionals such as divorce coaches or financial planners are involved. It is private. Every step involves personal choice. If one party decides to litigate, then all the disputants must find new lawyers.

LITIGATION

In this process, judges make binding decisions on facts that are presented and argued by the parties. It can take many months, sometimes years, to get to trial. The procedures are formal and the emphasis is on procedural fairness. The remedies that a judge can order are limited by legislation and common law. The trial and the judicial decision are usually open to the public. The legal fees, disbursements and the taxes on these can be onerous. Far fewer matters reach trial than are begun. One reason is that disputants negotiate a resolution before the trial, alone, or with the assistance of a mediator.

MEDIATION

A neutral mediator assists the disputants to reach a voluntary resolution of the dispute. Even when disputants are required to attend mediation, whether to continue to participate and every decision reached at mediation, is voluntary. When and where to mediate, and who will mediate, are choices made by the disputants. Whether or not lawyers attend the mediation and what role they fill at the mediation are also matters of choice. The outcomes that are reached by the parties are often detailed and creative and may, by consent, address other matters. The role of the mediator can vary. Some mediators will give their non-binding opinion about what a court would decide. Other mediators will avoid giving an opinion but will encourage parties to carefully consider certain aspects of the dispute. Still other mediators focus on how the dispute has impacted the disputants’ relationship. In most cases, mediation is confidential and private.

MINI TRIAL

In Canada, mini-trials are voluntary decision-making processes among corporations that are involved in a dispute. Senior executives from each corporation, with the assistance of an outside, neutral third party, agree to attempt to negotiate a collaborative resolution. The facts are presented to them by middle management and possibly by lawyers in a trial-like format. The process is voluntary and can be arranged much sooner than a trial. It can be costly, particularly if the dispute is complex. At the same time, it is private, relatively fast, and may preserve the corporate relationship.

NEGOTATION

The disputants only, or the disputants and their lawyers, negotiate the resolution of their dispute. When an integrative process is used to reach the resolution, negotiation can be very satisfying. When power is used to force a resolution, there may be resentment. Negotiation can be fast, voluntary, creative and private. The cost of negotiation depends on when the resolution is achieved. If litigation has commenced and the resolution is just before trial, the costs are much higher.

NEUTRAL CASE EVALUATION

A neutral third party is agreed upon by the disputants and directed to provide a non-binding opinion about how the dispute, or a specific aspect of the dispute, would be determined by a court. Typically, the evaluator has expertise in the subject matter of the dispute. While the outcome is persuasive only, it often assists parties to reach a resolution. It is confidential.

PARTNERING

In this form of voluntary dispute resolution, organizations or businesses that will be working together on a specific project, use a facilitator to assist them to decide beforehand the dispute resolution procedures that will be used to resolve disputes that may arise among them during the project. Partnering is an example of dispute management.