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Dispute Resolution Processes Essay, Research Paper

Dispute Resolution Processes

Wherever there is a human-interaction, conflict is virtually unpreventable. For-instance, some conflict may well erupt a dispute in any structure of relationships, and other perhaps resulting in extremely compound international confrontation and hostility.

It isn’t that they can’t see the solution. It is that they can’t see the problem (G. K. Chesterton).

Consequently, dispute resolution processes have been developed to manage and intervene in these types of disputes. The result is a highly diverse field in which conflict mediation professionals and other private nonprofit organization take on a broad array of roles. This research paper defines some of the different roles established in the dispute resolution processes, with an outline to some advantages of employing alternative dispute resolution “ADR”.

Mediation

Mediation is one of several approaches to conflict resolution that uses a “third party” intermediary to help the disputing parties resolve their conflict. Unlike arbitration, where the third party actually makes the decision about how the conflict should be resolved, mediators only assist the parties in their efforts to formulate a solution of their own.

The definition of mediation has often created confusion due to the ambiguity of the essence of mediation. Mediation is however used in nearly every area of human interaction.

In some cases, mediation is a more useful and efficient alternative dispute resolution option. This is particularly the case if there is an on-going relationship between the parties (in either a direct or indirect way) and/or there is a relatively small amount of money in controversy. Mediation could be confidential and it allows for any creative settlement options that are satisfactory for all concerned. In mediation, the neutral third party facilitates negotiation between the parties, assisting them towards resolution. The mediator may not render a decision.

Arbitration

In arbitration, a neutral third party is empowered by the parties to decide the outcome of a dispute. Of all the methods of alternative dispute resolution, arbitration most closely resembles standard legal proceedings.

There are two types of arbitration: binding and non-binding. In binding arbitration, the parties agree to waive their right to go to court for a judicial decision. In non-binding arbitration, the parties have the discretion to abide by the arbitrator’s decision.

Other Dispute Resolution Processes

There is a spectrum of dispute resolution processes, ranging from informal discussion to formal adjudication. The concept behind the development of alternative dispute resolution, or “ADR,” is that the traditional adjudicatory model of dispute resolution is not always the best approach. Rather, the concept has developed that “the forum should fit the fuss,” and not vice versa.

With time, ADR has come to have a new meaning, “appropriate dispute resolution.” In light of the rapid growth of collaborative negotiation, mediation and other settlement processes, there is, in fact, nothing alternative at all about ADR today. We are finding collaborative negotiation and mediation processes adopted with increasing frequency in legal, governmental, business and family matters.

There are no limits to the types of dispute resolution processes that can be utilized. When it comes to settlement processing, “anything goes,” both in terms of the process of reaching resolution and content of any resolution. The only key is that the parties (and assisting professionals) understand and agree to the same process. This concept of “informed consent to the process” permeates the ADR movement. Also common to the ADR processes is the concept of creating a settlement event, some shared experience that increases the likelihood of resolution.

All ADR processes have the following desirable impacts:

A. They motivate the parties and any representatives to fasten their attention to the case and prepare for resolution;

B. The parties have “their day in court,” a “hearing” in which they have the opportunity to present their perspectives on the situation and their sense of a “fair” resolution;

C. Often for the first time, the parties have the opportunity to experience a capable presentation of the other side’s case;

D. The parties have a window of opportunity to identify common interests and points of agreement, and the opportunity to fashion mutually acceptable settlement options to disputed issues.

The ADR processes differ in their formality and placement of decision-making power. If the process is mediation, the decision-making power will reside at all times with the parties. In adjudication and arbitration, the decision-making power lies with the third-party neutral.

The ADR Processes

Adjudicatory Processes

Adjudication – the competitive presentation of evidence to a judge that results in an order, judgment or decree (win/lose decision). The decision-maker is selected by the community and rules according to community legal standards. There are formal rules of procedure and evidence. The judge’s decision may be appealed.

Arbitration – the competitive presentation of evidence to a decision-maker selected by the parties for an award (win/lose decision). The arbitrator is typically selected based upon the arbitrator’s substantive expertise. The arbitration is held according to procedural and evidentiary rules the parties agree upon. Arbitration decisions typically cannot be appealed, except in situations of undue influence, bias, duress, etc.

Court Annexed Arbitration – Court-annexed arbitration is not true arbitration as parties have right to

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