Dispute resolution is a term that refers to a number of processes that can be used to resolve a conflict, dispute or claim. Dispute resolution may also be referred to as alternative dispute resolution, appropriate dispute resolution, or ADR for short. Dispute resolution processes are alternatives to having a court (state or federal judge or jury) decide the dispute in a trial or other institutions decide the resolution of the case or contract. Dispute resolution processes can be used to resolve any type of dispute including family, neighborhood, employment, business, housing, personal injury, consumer, and environmental disputes. In addition, the United States Federal Government utilizes dispute resolution processes to assist government employees and private citizens resolve complaints and disputes in many areas including workplace, employment, and contracting matters.
Why Use Dispute Resolution?
Dispute resolution processes have several advantages. For instance, many dispute resolution processes are cheaper and faster than the traditional legal process. Certain processes can provide the parties involved with greater participation in reaching a solution, as well as more control over the outcome of the dispute. In addition, dispute resolution processes are less formal and have more flexible rules than the trial court. In many processes, you are not required to have an attorney to participate. In cases where the court or judge has referred the case to a dispute resolution process, attorneys often participate. The role of an attorney in a dispute resolution process varies depending upon the nature of the dispute and the type of dispute resolution process. In many dispute resolution processes, attorneys accompany their clients and participate either as counselors or as advocates.
There are few things managers dread more than litigation. Even petty cases have a way of damaging relationships, tarnishing reputations, and eating up enormous sums of money, time, and talent. Most managers know that lawsuits are steadily increasing. Smart managers know that they are also increasingly avoidable. There are now many alternatives to litigation that can nip lawsuits in the bud, resolve long-standing disputes, and even produce win-win solutions to old and bitter fights that would otherwise only leave both sides damaged. Lawyers’ fees and other direct costs get the most attention because they’re easy to measure. But the indirect business costs of litigation, the cost of diverting key personnel from productive activities, for example, or the cost of destroying a profitable relationship with a former business ally, are perhaps equally important. From the company’s perspective, they may be more important. The high cost of resolving disputes has several causes, but the most important is the mind-set established and nurtured by the adversary system. The essence of this system is that lawyers for opposing parties have the responsibility to present every piece of evidence and make every legal argument that might possibly benefit their clients. Pretrial discovery and other litigation procedures are designed to leave no stone unturned in the search for relevant evidence. By training, temperament, professional duty, and frequently by client expectation, attorneys tend to exploit these procedures to the fullest and to persevere as long as any hope remains. In fact, each lawyer has an obligation to be as zealous an advocate as possible, even sometimes especially to the detriment of discovering the truth and of resolving conflicts to the satisfaction of both parties. The idea behind the adversary system is that the truth will emerge when opposing sides present their cases as aggressively as possible. Even though this ideal is not always realized, the principle is probably sound. The problem with the adversary method in civil cases is not theoretical but practical.
First, it is not the most effective way to resolve some kinds of disputes. Second, it can be made more effective for most kinds of disputes by borrowing certain of the non-adversarial features of other forms of dispute resolution. Third, from both the societal and the individual perspective, we may no longer be able to afford it in its undiluted form. Alternatives to traditional litigation have been around for many years, but Alternative Dispute Resolution (ADR) as a formal technique and an accepted business practice emerged in the 1970s.
When a client initially comes to the solicitor for advice, it is the solicitor’s job to evaluate the claim and advise the client on the next steps that should be taken. To do this, the solicitor must read through all the relevant documentation received from the client and formulate an opinion on the client’s prospects of success. The solicitor might advise the client that their claim is not particularly strong and therefore they should try and settle it as soon as possible. Alternatively, the solicitor might advise the client that a claim that has been issued against them is weak and that they have a good defense. Civil litigation/ dispute resolution solicitors issue court proceedings and deal with disclosure and drafting witness statements. They instruct Counsel to attend the trial, prepare trial bundles and all the documentation required by the court both pre- and post-trial. Civil litigation/ dispute resolution solicitors frequently attend mediation and/or settlement meetings whereby all the parties sit round a table and try to come to an agreement. Depending on the type of dispute, arbitrations as another form of Alternative Dispute Resolution are also popular. The solicitor will attend conferences with Counsel and the client to discuss the case and preparations for trial. At the trial, the solicitor has a dual role; they are there to assist the barrister if they have any queries about the case or need instructions and also to ensure that the client understands what is happening around them, as court can be quite terrifying for lay people.
There are huge amounts of paperwork involved in litigation from disclosure documents to preparing trial bundles that run into many files. It is imperative that the solicitor is organized because nothing can be lost or overlooked as it could be detrimental to the case. Litigation is extremely procedural and there are very important court deadlines that must not be missed otherwise your client’s claim or defense could be struck out. Litigators generally keep comprehensive diaries to ensure that all deadlines are met. Solicitors need to be succinct and coherent in both written and oral communication. They must be able to communicate with the court, clients, barristers and their opposing number. Court is generally the last resort and there will have been at least some pre-issue correspondence between the opposing parties. The ability to be persuasive when communicating is another extremely relevant skill as this could help your client settle a claim. Having an interest in the world of business and finance is a pre-requisite for this area of law. The solicitor needs to know their client and their client’s business in order to give sound commercial advice. Litigation clients are generally busy people and organizations and they don’t want to read letters that are three pages long and refer to statutes and case law. Clients want to know that their solicitor will either help them resolve a problem or avoid it altogether by using their commercial knowledge.
Types of Dispute Resolution
Mediation: 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 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. Mediations 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 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. 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
Arbitration is the submission of a disputed matter to an impartial person (the arbitrator) for decision.
Process of Arbitration
Arbitration is typically an out-of-court method for resolving a dispute. The arbitrator controls the process, will listen to both sides and make a decision. Like a trial, only one side will prevail. Unlike a trial, appeal rights are limited. In a more formal setting, the arbitrator will conduct a hearing where all of the parties present evidence through documents, exhibits and testimony. The parties may agree to, in some instances, establish their own procedure; or an administrating organization may provide procedures. There can be either one arbitrator or a panel of three arbitrators. An arbitration hearing is usually held in offices or other meeting rooms. The result can be binding if all parties have previously agreed to be bound by the decision. In that case, the right to appeal the arbitrator’s decision is very limited. An arbitrator’s award can be reduced to judgment in a court and thus be enforceable. In nonbinding arbitration, a decision may become final if all parties agree to accept it or it may serve to help you evaluate the case and be a starting point for settlement talks. A common use of arbitration is in the area of labor disputes between fire fighters and the city in wage disputes, for example. You will usually be represented by an attorney in arbitration. Many contracts have clauses which require that disputes arising out of that contract be arbitrated. You may have seen such a provision when you applied for a credit card or opened a retirement account or other account with a stock broker. You may want to explore using this process if you and the other side agree that the problem needs to have someone make a decision but you do not want the expense of going through the court process. If you agree to arbitrate or sign a contract with an arbitration clause, you should understand that the arbitrator may make the final decision and that you may be waiving your right to a trial in court. Many attorneys, other professionals or professional associations offer their services as arbitrators. Typically your attorney will select the arbitrator based upon the particular type of the dispute. In complex and highly technical cases, often an arbitrator who is knowledgeable in that field is chosen. Usually fees are charged.
Characteristics of Arbitration:
• Can be used voluntarily
• Private (unless the limited court appeal is made)
• Maybe less formal and structured than going to court, depending on applicable arbitration rules
• Usually quicker and less expensive than going to court, depending on applicable arbitration rules
• Each party will have the opportunity to present evidence and make arguments
• May have a right to choose an arbitrator with specialized expertise
• A decision will be made by the arbitrator which may resolve the dispute and be final
• Arbitrator’s award can be enforced in a court
• If nonbinding, you still have the right to a trial
Litigation (Going To Court)
Litigation is the use of the courts and civil justice system to resolve legal controversies. Litigation can be used to compel opposing party to participate in the solution.
The Litigation Process
Litigation is begun by filing a lawsuit in a court. Specific rules of procedure, discovery and presentation of evidence must be followed. The attorney for the other side will want to take your deposition to learn more about the facts as you see them and your position in the case. There can be a number of court appearances by you and/or your lawyer. If the parties cannot agree how to settle the case, either the judge or a jury will decide the dispute for you through a trial. A trial is a formal judicial proceeding allowing full examination and determination of all the issues between the parties with each side presenting its case to either a jury or a judge. The decision is made by applying the facts of the case to the applicable law. That verdict or decision can conclude the litigation process and be enforceable; however, if appropriate, the loser can appeal the decision to a higher court. In some cases, the losing party may have to pay the costs of the lawsuit and may have to pay the other party’s attorney fees. You may be in a municipal court, state district court or a federal court depending on the type of dispute you have and where your attorney files your case or where you get sued. State court trial judges are elected on a nonpartisan ballot, though vacancies are filled through an appointment process from highly qualified applicants. The district courts also appoint special judges, who handle certain kinds of cases, such as small claims and divorces. These judges are selected by the district judges from qualified applicants. If you cannot settle your differences through negotiation, mediation, arbitration or some other means, then you should pursue litigation through the courts with your lawyer.
Characteristics of Litigation:
• Involuntary – a defendant must participate (no choice)
• Formal and structured rules of evidence and procedure
• Each party has the opportunity to present its evidence and argument and cross-examine the other side – there are procedural safeguards
• Public – court proceedings and records are open
• The decision is based on the law
• The decision can be final and binding
• Right of appeal exists
• Losing party may pay costs
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