Legal dispute resolution
The legal system provides resolutions for many different types of disputes. Some disputants will not reach agreement through a collaborative process. Some disputes need the coercive power of the state to enforce a resolution. Perhaps more importantly, many people want a professional advocate when they become involved in a dispute, particularly if the dispute involves perceived legal rights, legal wrongdoing, or threat of legal action against them.
The most common form of judicial dispute resolution is litigation. Litigation is initiated when one party files suit against another. In the United States, litigation is facilitated by the government within federal, state, and municipal courts. The proceedings are very formal and are governed by rules, such as rules of evidence and procedure, which are established by the legislature. Outcomes are decided by an impartial judge and/or jury, based on the factual questions of the case and the application law. The verdict of the court is binding, not advisory; however, both parties have the right to appeal the judgment to a higher court. Judicial dispute resolution is typically adversarial in nature, for example, involving antagonistic parties or opposing interests seeking an outcome most favorable to their position.
Due to the antagonistic nature of litigation, collaborators frequently opt for solving disputes privately.[4] Indeed, the involvement of lawyers does not always signal the end of a collaborative relationship. The duration of the exchange or the familiarity with exchange partners are important factors impacting the willingness of the firm to resolve disputes. Such impact is contingent on whether a cooperative norm has been developed through the course of the collaboration.[5]
Retired judges or private lawyers often become arbitrators or mediators; however, trained and qualified non-legal dispute resolution specialists form a growing body within the field of alternative dispute resolution (ADR). In the United States, many states now have mediation or other ADR programs annexed to the courts, to facilitate settlement of lawsuits.
Extrajudicial dispute resolution
Some use the term dispute resolution to refer only to alternative dispute resolution (ADR), that is, extrajudicial processes such as arbitration, collaborative law, and mediation used to resolve conflict and potential conflict between and among individuals, business entities, governmental agencies, and (in the public international law context) states. ADR generally depends on agreement by the parties to use ADR processes, either before or after a dispute has arisen. ADR has experienced steadily increasing acceptance and utilization because of a perception of greater flexibility, costs below those of traditional litigation, and speedy resolution of disputes, among other perceived advantages. However, some have criticized these methods as taking away the right to seek redress of grievances in the courts, suggesting that extrajudicial dispute resolution may not offer the fairest way for parties not in an equal bargaining relationship, for example in a dispute between a consumer and a large corporation. In addition, in some circumstances, arbitration and other ADR processes may become as expensive as litigation or more so.
Alternative dispute resolution
Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation: a collective term for the ways that parties can settle disputes, with the help of a third party.[1] However, ADR is also increasingly being adopted as a tool to help settle disputes alongside the court system itself.[2][3]
Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties’ cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called “compulsory” mediation; this means that attendance is compulsory, not that settlement must be reached through mediation).[4] Additionally, parties to merger and acquisition transactions are increasingly turning to ADR to resolve post-acquisition disputes.[5]
The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.[6] Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle disputes.[7] Since the 1990s many American courts have also increasingly advocated for the use of ADR to settle disputes.[8] However, it is not clear as to whether litigants can properly identify and then use the ADR programmes available to them, thereby potentially limiting their effectiveness.
Methods for Resolving Conflicts and Disputes
What Are Your Options
We are all familiar with the most traditional dispute-resolution process of our civil justice system: litigation and trial with a judge or jury deciding who is right or wrong – where someone wins and someone loses. However, there are many other options available. Negotiation, mediation and arbitration – often called ADR or alternative dispute resolution- are the most well-known.
Whether you are involved in a family or neighborhood dispute or a lawsuit involving thousands of dollars, these processes should be considered. They are often the more appropriate methods of dispute resolution and can result in a fair, just, reasonable answer for both you and the other party. Settlement and compromise have long been favored in the legal system. In fact, most cases that are filed in a court do settle. Only five percent of all cases filed go to trial. ADR procedures are excellent options for you in dealing with controversy, allowing you to reach resolution earlier and with less expense than traditional litigation. In fact, many courts require parties to consider some form of ADR before going to trial. The following processes describe ways to resolve disputes.
Negotiation
Definition: Negotiation is the most basic means of settling differences. It is back-and-forth communication between the parties of the conflict with the goal of trying to find a solution.
The Process: You may negotiate directly with the other person. You may hire an attorney to negotiate directly with the other side on your behalf. There are no specific procedures to follow – you can determine your own – but it works best if all parties agree to remain calm and not talk at the same time. Depending on your situation, you can negotiate in the board room of a big company, in an office or even in your own living room.
Negotiation allows you to participate directly in decisions that affect you. In the most successful negotiations, the needs of both parties are considered. A negotiated agreement can become a contract and be enforceable.
When and How Negotiation Is Used: Most people negotiate every day. In some circumstances you may want the help of a lawyer to help you negotiate a fair deal. Negotiation is the first method of choice for problem-solving and trying to reach a mutually acceptable agreement. If no agreement is reached, you may pursue any of the other options suggested here. This process can be appropriately used at any stage of the conflict – before a lawsuit is filed, while a lawsuit is in progress, at the conclusion of a trial, even before or after an appeal is filed.
Characteristics of Negotiation:
- Voluntary
- Private and confidential
- Quick and inexpensive
- Informal and unstructured
- Parties control the process, make their own decisions and reach their own agreements (no third-party decision maker)
- Negotiated agreements can be enforceable
- Can result in a win-win solution
Mediation
Definition: Mediation is a voluntary process in which an impartial person (the mediator) helps with communication and promotes reconciliation between the parties which will allow them to reach a mutually acceptable agreement. Mediation often is the next step if negotiation proves unsuccessful.
The Process: The mediator manages the process and helps facilitate negotiation between the parties. A mediator does not make a decision nor force an agreement. The parties directly participate and are responsible for negotiating their own settlement or agreement.
At the beginning of the mediation session, the mediator will describe the process and the ground rules. The parties or their attorneys have an opportunity to explain their view of the dispute. Mediation helps each side better understand the other’s point of view. Sometimes the mediator will meet separately with each side. Separate “caucusing” can help address emotional and factual issues as well as allow time for receiving legal advice from your attorney. Meditations are generally held in the office of the mediator or other agreed location.
Agreements can be creative. You could reach a solution that might not be available from a court of law. For example, if you owe someone money but don’t have the cash, rather than be sued and get a judgment against you, settlement options could include trading something you have for something the other wants. If an agreement is reached, it will generally be reduced to writing. Most people uphold a mediated agreement because they were a part of making it. It can become a contract and be enforceable. If there is no agreement, you have not lost any of your rights and you can pursue other options such as arbitration or going to trial.
When and How Mediation Is Used: When you and the other person are unable to negotiate a resolution to your dispute by yourselves, you may seek the assistance of a mediator who will help you and the other party explore ways of resolving your differences. You may choose to go to mediation with or without a lawyer depending upon the type of problem you have. You may always consult with an attorney prior to finalizing an agreement to be sure that you have made fully informed decisions and that all your rights are protected. Sometimes mediators will suggest that you do this. Mediation can be used in most conflicts ranging from disputes between consumers and merchants, landlords and tenants, employers and employees, family members in such areas as divorce, child custody and visitation rights, eldercare and probate as well as simple or complex business disputes or personal injury matters. Mediation can also be used at any stage of the conflict such as facilitating settlements of a pending lawsuit.
Attorneys and other professionals provide private mediation for a fee. If you have an attorney, you can work together to select a mediator of your choice. You may want a mediator who is knowledgeable about the subject matter of your dispute. You may wish to use a for-fee mediator in the first instance or if Early Settlement mediation has not resulted in a resolution of your dispute. You may also find mediators or mediation services listed in the telephone directory or available on lists provided by some courts or private professional organizations. When selecting a mediator, you should always check their credentials and get references. Mediators qualified under the District Court Mediation Act or certified pursuant to the Dispute Resolution Act meet statutory standards of training and experience.
Who Provides This Service: Public mediation services are available through Early Settlement Regional Centers located statewide. A list of the regional centers can be found online at www.oscn.net/static/adr. This program provides the services of volunteer mediators, trained and certified to mediate in the Administrative Office of the Oklahoma Supreme Court. Mediators in this system are assigned to mediate your dispute by the various program administrators. They are available at minimal or no charge to help you resolve conflicts, often without the assistance of an attorney or the need to go to court. Call 405-556-9300 for the phone number and location of the center nearest you.
You may also find mediation in our state and federal court systems called court-sponsored mediation. Generally you and your attorney may select a private mediator or choose a public service. Fees may apply. Judges are frequently referring cases to settlement procedures such as mediation to help litigants resolve their disputes in less time and with less cost than litigation and trial.
Characteristics of Mediation:
- Promotes communication and cooperation
- Provides a basis for you to resolve disputes on your own
- Voluntary, informal, and flexible
- Private and confidential, avoiding public disclosure of personal or business problems
- Can reduce hostility and preserve ongoing relationships
- Allows you to avoid the uncertainty, time, cost and stress of going to trial
- Allows you to make mutually acceptable agreements tailored to meet your needs
- Can result in a win-win solution
