Let’s consider the following disputes:
- A divorcing couple can’t agree on a custody arrangement for their young children.
• A manager accuses his former employer of firing him due to age discrimination.
• An electronics company accuses another company of patent infringement.
In each case, the parties and their lawyers have been unable to negotiate a resolution on their own. They’re ready for outside help in resolving the dispute, but are unsure what process to use.
What is dispute resolution?
There are three basic types of dispute resolution, each with its pros and cons.
Here’s an overview of the three basic types of dispute resolution:
Mediation. In mediation, a neutral third party tries to help disputants come to consensus on their own. Rather than imposing a solution, a professional mediator works with the conflicting sides to explore the interests underlying their positions. Working with parties together and sometimes separately, mediators try to help them hammer out a resolution that is sustainable, voluntary, and non-binding.
Arbitration. 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, such as whether lawyers will be present and which standards of evidence to use. Arbitrators hand down decisions that are usually confidential and that cannot be appealed. Like mediation, arbitration tends to be much less expensive than litigation.
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. Information conveyed in hearings and trials usually enters the public record. Lawyers typically dominate litigation, which often ends in a settlement agreement during the pretrial period.
Three questions to ask
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 answer three questions, based on the type of dispute you are facing, to ensure that you choose the right method.
QUESTION 1: “What are my goals?” Simply knowing what you want to get out of the dispute resolution process can help you decide where to start. Begin by prioritizing your goals. For example, Carla wants to jointly hash out a custody agreement with her husband as inexpensively as possible. It seems clear that mediation is the best choice for her dispute, due to its relative speed and low cost, and the fact that it gives parties the greatest degree of control over the final outcome.
By contrast, Jack, who feels he is the victim of age discrimination by his former employer, has the primary goal of winning a large financial settlement. Thus, he may want to start with arbitration. If he also wants to set a legal precedent that could benefit others, he might turn to litigation instead. In both instances, he would do well to listen closely to his attorney’s assessment of his odds of winning the case and a large settlement.
What if you and the other party can’t agree on your goals? Sander and Rozdeiczer advise you to start off with mediation, as it is a safe, non-binding procedure for both sides.
QUESTION 2: “Which process will capitalize on the best features of the dispute?” Every dispute has features that can help you reach a beneficial outcome, write Sander and Rozdeiczer. Which process will best trigger the strengths of the case?
The authors have identified a number of dispute features that lend themselves well to mediation, including a good relationship between parties and their attorneys, opportunities for creative problem solving, and eagerness to settle quickly.
By contrast, if you would benefit from formal protections, such as enforcement of key decisions, then arbitration or litigation might be a more fitting option. Suppose that Company A believes Company B is guilty of infringing on one of its patents. Even if mediation resulted in Company B’s agreeing to stop manufacturing the product in question, Company A might doubt whether Company B would abide by the decision. If so, Company A might decide to go straight to arbitration.
QUESTION 3: “Which process will best overcome barriers to resolution?” Consider the ability of the three different dispute-resolution methods to help you overcome barriers to settlement. When parties are having trouble communicating and have a strong desire to air their feelings, mediation is often the best choice, advise Sander and Rozdeiczer. When more than two parties are involved, such as other relatives in the case of a custody dispute, mediation might also be optimal, as it allows multiple parties to be involved. However, when parties have different opinions regarding the law affecting their case, a judge or arbitrator’s expertise ultimately may be needed.
Source : Harvard Law School( Program on Negotiation)