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.
- Time: Is it important to you to resolve the dispute quickly? Does it matter how much time is spent preparing for, and participating in, the dispute-resolution process?
- Resources: What will each process cost — in lost opportunity? In legal and other related expenses? In personal stress?
- Ability to Negotiate: Is collaboration possible between the disputants? Is each disputant seeking a realistic outcome? Are you emotionally ready to negotiate?
- Privacy: How will publicity affect you, your business, your family, and your relationship with the other disputant? Does the dispute itself have a public dimension? Is there a reason to seek a court decision?
- Outcome: What do you need — a non-binding neutral evaluation of contentious facts or criteria? A decision reached by a neutral party? A detailed, voluntary agreement reached by the disputants?
Five Basic Steps
- Risk Analysis: Conduct a Risk Analysis, so that you know why you are selecting the dispute-resolution process you are.
- Take Time: Take time to clearly define what the dispute is about.
- Ask Why: Think about why the dispute hasn’t settled.
- Identify Objectives: Identify your objectives. Be open to hearing the other party’s objectives.
- Prepare Information: Gather the information that you need to make good decisions.
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 Divorce 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.
In this process, judges make binding decisions based 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.
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.
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 and relatively fast, and it may preserve the corporate relationship.
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.
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.
Deborah Lynn Zutter practises Collaborative Divorce and mediation in Vancouver. She is a conflict-resolution trainer and frequent public speaker who has taught mediation at the University of British Columbia, Faculty of Law. She is also the author of Preparing for Mediation: A Dispute Resolution Guide, 2nd ed.