When it comes to dispute resolution, there are so many choices available to us. Understandably, disputants are often confused about which process to apply to their situation. This article offers some guidance, adapted from Frank E. A. Sander and Lukasz Rozdeiczer’s chapter on the topic in The Handbook of Dispute Resolution (Jossey-Bass, 2005).
Suppose that parties and their lawyers have exhausted their attempts to negotiate a resolution. They’re ready for outside help in ending their dispute, yet they don’t know exactly where to turn.
Here’s a review of the three basic types of dispute resolution to consider:
The goal of mediation is for a neutral third party to help disputants come to a consensus on their own.
- Rather than imposing a solution, a professional mediator works with the conflicting sides to explore the interests underlying their positions.
Mediation can be effective at allowing parties to vent their feelings and fully explore their grievances.
Working with parties together and sometimes separately, mediators can try to help them hammer out a resolution that is sustainable, voluntary, and nonbinding.
In arbitration, a neutral third party serves as a judge who is responsible for resolving the dispute.
- The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.
The disputants can negotiate virtually any aspect of the arbitration process, including whether lawyers will be present at the time and which standards of evidence will be used.
Arbitrators hand down decisions that are usually confidential and that cannot be appealed.
Like mediation, arbitration tends to be much less expensive than litigation.
The most familiar type of dispute resolution, civil litigation typically involves a defendant facing off against a plaintiff before either a judge or a judge and jury.
- The judge or the jury is responsible for weighing the evidence and making a ruling. The information conveyed in hearings and trials usually enters, and stays on the public record.
Lawyers typically dominate litigation, which often ends in a settlement agreement during the pretrial period of discovery and preparation.
For more information on how to handle a dispute resolution, read these related articles: Three Questions to Ask About the Dispute Resolution Process – Three essential questions you need to ask about the dispute resolution process, Make the Most of Mediation – Make sure your next mediation session succeeds with these negotiation skills tips, Top Ten Business Negotiations of 2013 – Our top ten business negotiation deals of 2013, The Art of Deal Diplomacy – Combine the arts of diplomacy and savvy business negotiation in your next session at the bargaining table after reading this article, Capture the Best of Mediation and Arbitration with Med-Arb – Combine mediation skills and arbitration skills in your next session at the bargaining table and improve your results.
What do you think of these Dispute Resolution methods? Have you used any of them before? Let us know in the comment section below.
Originally published in 2014.
Adapted from “Trying to resolve a dispute? Choose the right process,” in the August 2009 issue of Negotiation.
The benefit of mediation is the fact that the parties to the mediation come to their own agreement. The decisions made by the parties are usually longer lasting compared to the judge or jury in litigation or the arbitrator in an arbitration.
Mediation does result in binding agreements, based on the parties’ mediated discussions. However, binding areements resulting from litigations or arbitrations which are settled are not as frequently complied with as agreements reached after mediation. There is yet a fourth method of dispute resolution not mentioned here. That is facilitated mediated negotiation, during which the mediator takes on a more active roll in guiding the parties towards a resolution. In this type of mediation, the mediator is often expected to have a substantive background in the subject matter.
Oftentimes in practice, disputants usually cool off their emotions by adopting litigation as a method of resolvong their issues. This changes after their emotions settle, and they are now open to other methods of resolution. So there’s a method I call Lit=Med.. Litigation before Mediation. The parties thereafter explore settlement amicably. Their terms of settlement can be adopted as the consent judgement of the court. The issues of time and cost makes them explore this process.
I find it interesting that arbitration is a type of dispute resolution. It is good to know that arbitration is more affordable than other methods. I think it would be crucial to hire an arbitrator with a good track record.