Dispute resolution is often a multistep process. Parties typically begin with negotiation, move to mediation if needed, and, if those efforts fail, proceed to arbitration or even litigation.
This progression makes practical sense: parties can start with less expensive and less formal procedures before committing significant time and money.
Still, there are situations when you might wonder whether it’s smarter to sue first and then seek settlement rather than begin with a more cooperative process.
So how do you decide which dispute resolution method to choose?
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How should you decide which dispute resolution process to choose? In a chapter in The Handbook of Dispute Resolution (Jossey-Bass, 2005), Frank E. A. Sander and Lukasz Rozdeiczer advise you to choose your dispute resolution strategy by answering three core questions about your case.
Understanding Your Dispute Resolution Options
Before diving into the questions, it helps to clarify how the main processes differ:
- Negotiation: Parties work directly to resolve the dispute.
- Mediation: A neutral mediator helps parties reach a voluntary agreement.
- Arbitration: A neutral arbitrator issues a binding decision after hearing arguments.
- Litigation: Courts decide the outcome through formal legal proceedings.
Most disputes move along this spectrum only as needed.
QUESTION 1: What Are My Goals?
Knowing what you want from the process often points you toward the right starting place. Begin by prioritizing your goals.
For example, Carla wants to reach a custody agreement with her husband quickly and affordably. She also wants both parties to feel committed to the outcome.
Given those priorities, mediation makes sense. It is typically faster and less costly than arbitration or litigation, and it gives both sides direct control over the final agreement.
Now consider Jack, who believes his former employer discriminated against him based on age. His primary goal is obtaining significant financial compensation.
For Jack, arbitration may be the best starting point. If he also wants to set legal precedent that could help others, litigation might be necessary.
In both scenarios, listening carefully to legal counsel’s assessment of the case is essential.
What if you and the other party disagree about goals? Sander and Rozdeiczer suggest beginning with mediation, since it is nonbinding and low risk for both sides.
QUESTION 2: Which Process Best Fits the Features of the Dispute?
Every dispute contains features that can either help or hinder resolution. The question becomes: which process makes the most of those strengths?
Disputes often work well in mediation when:
- The parties or attorneys maintain a workable relationship
- Creative solutions are possible
- Apologies or acknowledgment of mistakes could help move talks forward
- Parties are eager for a quick resolution
- Multiple issues allow tradeoffs and compromise
When these characteristics are present, mediation often provides flexibility and opportunity for mutually beneficial solutions.
By contrast, arbitration or litigation may be better when formal enforcement is crucial.
For example, suppose Company A believes Company B infringed on its patent. Even if mediation led Company B to promise to stop producing the disputed product, Company A might worry about compliance.
If Company A believes its legal case is strong and enforcement is essential, arbitration—or litigation—may be more appropriate.
QUESTION 3: Which Process Will Best Overcome Barriers to Resolution?
Even when parties disagree sharply, many still prefer settlement to a judge’s or arbitrator’s win-lose decision.
The key question becomes: which process best addresses obstacles preventing agreement?
Mediation is often ideal when:
- Communication between parties has broken down
- Emotions need to be expressed constructively
- Multiple stakeholders must be heard
- Ongoing relationships must be preserved
For example, custody disputes often involve grandparents or extended family members. Mediation allows multiple voices to participate in shaping workable solutions.
However, when parties fundamentally disagree about legal interpretation or need authoritative rulings, arbitration or litigation may be necessary.
When in Doubt, Mediate
In many cases, mediation remains the safest starting point.
Its relatively low cost and low risk make it an effective first step. Mediation allows parties to work collaboratively toward solutions with the help of a neutral expert, rather than turning the outcome over to a third party.
It is particularly valuable when parties must continue working together after the dispute.
And even if mediation does not resolve the conflict, participants usually gain clarity about the issues before moving to arbitration or court.
Do you find these questions helpful when deciding how to approach dispute resolution?
Claim your FREE copy: Dispute Resolution
Discover how to improve your dispute resolution skills in this free report, Dispute Resolution: Working Together Toward Conflict Resolution on the Job and at Home, from Harvard Law School.
Adapted from “Trying to resolve a dispute? Choose the right process,” in the August 2009 issue of Negotiation.
Originally published in 2014.
I have learnt the basic skills here and applied them and they worked for my case on a land dispute I was at with another contender. I am hopeful other people who find it challenging to settle their disputes to read these resources. For me I consider conflict resolution as a basic life sustaining course, and it blends in with ethics and morally to be thought at early to adolescent periods at school. In this way I believe we may solve half the problems in our communities in the countries we live around the globe.