While some proponents argue that mediation is suitable for any dispute and that what needs to be modified to address the unique aspects of each dispute is the mediation protocol, others say that mediation is not a panacea. They propose that for each dispute, there must be an assessment of the dispute and the disputants for the purpose of selecting the most appropriate dispute resolution process. The most suitable process choice may be a combination of processes used together or consecutively. It is essential to regularly review the appropriateness of a dispute resolution process as its usefulness can and does change over time.
In some situations, selecting one process may involve another. To illustrate, choosing litigation can include participation in ‘mandatory court-connected’ mediation. Also, it is important to remember that the failure to reach consensus in dispute resolution processes where resolution is to be achieved voluntarily, does not leave disputants without any recourse. Participation in another dispute resolution process is always an option.
There are six key considerations when making a dispute resolution process selection: time, resources, relationship, ability to negotiate, privacy, and outcome. My book, Preparing for Mediation: A Dispute Resolution Guide, applies these criteria in a checklist. The answers point to the right process for the dispute at this time. For example, if the outcome that is desired is a public and enforceable court decision, than litigation is the right process. Perhaps privacy and the maintenance of relationships are essential. In this circumstance, mediation or some other confidential, consensual process is called for.
What are the process choices? The variety of processes is constantly evolving. The following is a list of processes that are set out in alphabetical order for ease of reference:
- collaborative law,
- court or tribunal and judicial dispute resolution (JDR),
- neutral case evaluation,
- on-line dispute resolution (ODR)
- settlement counsel
Some of these can be combined. To illustrate, one spouse may commence a divorce action by filing a claim in the local court registry. The spouses may then decide that they want to use collaborative law to negotiate the terms of their separation agreement. Despite their commitment to resolve all their issues consensually, they become stuck over the ownership and use of the family cottage and annual vacation plans. At this point they could decide to use mediation.
Alternatively, divorcing spouses may have reached a stalemate in mediation. Neither one is willing or able to compromise over the choice of schooling for their only daughter. In this situation, they might decide to ask a child specialist — a mental-health professional trained in assisting children to cope with their parent’s divorce — to act as an arbitrator and give a non-binding decision about what school would be in their daughter’s best interests. The parents get the benefit of an expert’s objective opinion about their daughter. Because it is non-binding, they are not required to accept it. At the same time, the child specialist’s opinion provides very helpful information that can be used at their next mediation meeting.
The point is that there are many dispute resolution process choices to select from, and to combine. Resolution is possible. Be willing to try out a different process if you feel stuck with the one you are using.
Deborah Lynn Zutter, B.A., LL.B., LL.M. is a certified comprehensive lawyer/mediator with Family Mediation Canada. She brings more than 25 years of experience to her mediation and collaborative law clients. Deb is active in the conflict resolution community as a speaker, trainer and author and she has served community in various roles. She is the Past Chair of the National ADR Section of the Canadian Bar Association, the ADR Task Force of the Law Society of British Columbia and the Mediation Development Association of British Columbia. She is the author of Preparing for Mediation: A Dispute Resolution Guide (Abundance Solutions, 2nd edition, 2009).