How do you resolve a civil dispute? This question may have been presented to you before, but for many, the question is not considered until they are in the midst of a dispute themselves and trying to figure out ways to solve the dispute. Disputes are often disagreements about employment, contracts, money, and other issues that tend to cause us stress. Often people will only see traditional litigation as a way to resolve the dispute. However, there are a variety of other options available to people who would like to avoid litigation and settle their disputes out of court. These methods are known as alternative dispute resolution and include processes like negotiation, mediation, and arbitration. Each of these processes is helpful for certain kinds of disputes or relationships between the parties, and each one comes with its strengths and weaknesses.
It is important to distinguish that alternative dispute resolution as discussed in this article applies only to civil disputes. Civil disputes are any dispute between parties that is not a part of the criminal justice system. This can involve employment, family, real estate, business, and landlord-tenant disputes. Anything that is in the criminal justice system has its own process for settling disputes, and while there may be elements of negotiation in the process, a criminal defendant’s rights take precedence and must be protected through the process. However, civil disputes are often over people’s property or other interests, and the people on both sides of the dispute can make decisions about the process.
As mentioned above, there are three main types of resolution mechanisms for civil disputes—negotiation, mediation, and arbitration. Each of these processes is a way for the parties in a dispute to evaluate and understand the claims at hand and attempt to leave with a solution to the problem. They are each distinct in their style and method of practice, and each type is likely to produce certain results. Each process also has its advantages and disadvantages and often has specific disputes that it is particularly suited for. This article will explore these processes and how they serve to resolve disputes outside of court. It will discuss the disputes that a process is particularly suited for, and how the disadvantages of the system may not suit certain types of disputes.
Negotiation is a process where parties interact directly with one another to try and create a solution that both parties agree will settle the dispute. The parties will trade ideas back and forth until they reach an agreement and find something that works for them both. This is the least formal of the options and happens concurrently with litigation, often resulting in a settlement just shortly before the parties face each other in court. This process may be handled completely between the parties, but in many cases, the parties will have legal representation working to negotiate a deal on their behalf. Negotiation is also a part of other forms of dispute resolution, particularly mediation, as the parties to those disputes will often negotiate as a part of the mediation. However, negotiation on its own is still a form of dispute resolution and will have the following characteristics:
- Offers: Negotiation will begin with an offer from one of the parties to the other with an option to settle the dispute. This often involves terms that will be beneficial for both parties and will help the parties consider resolving the dispute without court. The opening offer will typically be best for the presenting party and will rarely be the final offer when the parties settle. However, it opens the gates to the negotiation and lays the foundation for the discussion.
- Counteroffer: The party that receives an offer may give a counteroffer, changing some of the terms to better fit what this party needs to settle the dispute. Counters will continue to move back and forth as the parties continue to work toward an agreement. The initial counteroffer will likely be just as good for the party that offers it as the initial offer was for the first party. These offers establish the boundaries that the parties will use to continue negotiating.
- Stops and Starts: Informal negotiations may stop when the parties believe that they cannot reach an agreement and start again when something pushes the parties toward a settlement agreement. This often happens when the parties start very far apart and have an inflated sense of their position on the dispute. Often, once the parties have time to evaluate their dispute, they will be able to reenter discussions with a clearer picture of the resolution.
- Written and Signed Agreement: If the parties reach an agreement, they will write and sign an agreement to submit to the court that will be put into an order. This order will be binding on the parties and can usually result in contempt. Occasionally, certain agreements will have consequences for not following the agreement built into the settlement. However, creating an agreement will give the parties the ability to settle their dispute in a way that works for them.
Negotiation is used often and for a wide variety of disputes. It can allow parties to determine where the opposition stands and what would need to be accomplished to resolve the dispute. It can provide flexibility for parties looking to approach settlement discussions organically and without the guidance of a neutral. It also gives the parties total control over the way their dispute is resolved. For these reasons, negotiation is ideal for the following situations:
- Information Gathering: Often, parties will enter a negotiation without a strong sense of the other’s party’s full case or the belief that the other party has in the strength of their case. Negotiation can allow the parties to learn more about the dispute and see the issues from different angles.
- Time Crunch: Negotiation can be helpful when the parties are approaching a time limit on the case and need to discuss a resolution but do not have time to get a mediator or arbitrator. It allows the parties to quickly resolve the situation if possible.
- Resistance: Negotiation is often a possible method when one party is resistant to other forms of dispute resolution. Because the process is informal and the parties are interacting directly, negotiation can often feel less like someone else is taking over the case and more like peers discussing an option.
The informal structure of negotiation and lack of a neutral can let the negotiations become one-sided and can exacerbate power imbalances. Therefore, it is important to avoid using negotiation when one of the parties has all the power and the other does not.
Mediation is a process where the parties work with a neutral third party who serves as a mediator between the two. It allows the parties to discuss settlement in a forum that ensures neutrality and fairness. The process is not usually binding, as the parties are still free to choose if they would like to settle and agree or move forward with the dispute. Mediation often takes place in a formal setting arranged by the mediator or the parties and allows discussion of the dispute in a safe and free space. Mediation seeks to find the root of the demands and problems to find creative solutions to the dispute. This process usually happens voluntarily by the parties agreeing to mediate, but in some places, a court may mandate mediation if they believe it could help the parties. The mediation process typically uses the following:
- Solutions: The mediator will encourage the parties to come up with solutions to the problems. This separates it from arbitration, which includes suggestions or decisions from the neutral. Depending on the mediator’s style, they may suggest solutions to the parties, while other mediators will allow the parties to drive the discussions and solutions. However, in all cases, solutions to the problems presented are sought.
- Neutral: The mediator will be a third-party person who is neutral in the situation. This is important so that all the parties feel comfortable speaking freely and sharing their ideas. Neutrality means that they are not tied to any party in a way that may influence their thinking and that they have no stake in the problem presented.
- Bargaining: The parties will eventually make their way to bargaining—either separately through the mediator or in a joint session and will move toward a solution. This will follow most of the steps of negotiation—offer, counteroffer, and agreements. It is unlikely to have many stops and starts in a mediation.
- Formal: The parties will hire a mediator who will sit down with the parties and lead them through the process of coming to a solution. There will be a set of rules to be followed and an agreement between the parties and the mediator regarding the process. It will also usually take place in a designated mediation spot for a day or two.
Mediation can be helpful in a variety of disputes as well. Because mediation is driven by the parties, it allows the process to have flexibility and creativity that other processes do not have. The presence of a neutral also helps guide the discussion and keep the focus on the issues between the parties rather than the people themselves. Some disputes that mediation is particularly suited for are:
- Structure Needed: Many times, parties that agree to mediation will have already had some attempts to reconcile through negotiation, but they lack the structure to do so. Having a place and time dedicated to mediation can help the parties leap over the hurdles that are distracting them and reach a solution.
- Close to Agreement: In the same vein, many parties to mediation may be close to an agreement, but need the help of a mediator to guide them through the process and help them overcome the last few issues in the way of settlement. However, if the parties could likely settle on their own if given more time, mediation may be an unnecessary cost.
Mediation can be counterproductive when there is a party or an outside influence that has large amounts of influence over one of the parties. This can create a situation where one party is not bargaining freely. The party-driven aspect of mediation can cause this issue, so attention needs to be paid to the balance of power between the parties.
Arbitration is the final form of dispute resolution and is the most formal. Arbitration involves the use of a third-party neutral to decide the dispute. It is very similar to court in that the parties will present their cases and an arbitrator or panel of arbitrators will issue a decision called an award that is almost always binding on the parties. The process is confidential and allows the parties to present their case without a public record. Many arbitrations are governed by international organizations that have established the rules for different types of arbitration. In many cases, the arbitration will have the following characteristics:
- Voluntary: Arbitration may only take place if the parties have agreed to submit their dispute to arbitration, which can happen before a dispute arises in a contract or after the dispute arises. This is an important characteristic because, without it, parties would be unlawfully giving up certain rights.
- Formal Presentation: An arbitration often involves some sort of evidentiary presentation that is more similar to litigation than the other options to resolve the dispute. However, the parties are not bound by the same rules of evidence as to the parties in litigation. They have more freedom and the arbitrators will often not require the same standards as a judge.
- Award: After the parties have presented evidence, the arbitrator will issue an award that is similar to order in court. The parties are required to comply with this award. Parties are also often tasked with enforcing the award, which may require submitting it to court if they have an issue collecting.
Arbitration offers a way to decide cases quickly and confidentially. Once an arbitrator takes on a case, the hearing will be set and the parties will have a deadline for their case. Some types of cases that arbitration is suited for are:
- Expertise: Because the parties get to pick their arbitrators when a case involves a technical or difficult subject matter, they can choose arbitrators who know the subject. This allows for time to be cut down and relieves the parties from having to adequately explain the issue.
- Finality Needed: In some cases, the parties need the finality that arbitration can bring. When the parties choose arbitration, it allows them to know that the process will end in a final award.
The finality of arbitration can also be a difficult thing because the parties are locked into the award. Additionally, it does not work well if the parties need relief while the case is being decided, because the arbitrator will not have that power, or if they do, it will be limited.
Negotiation, mediation, and arbitration are ways to settle a dispute outside of court. No process is better than the others, and each one has times that it is needed. The parties will need to consider the type of dispute and the process that they will need to resolve it. They will need to evaluate what relief they need and how much flexibility they need in the process. Finding the best process will help the parties leave with a solution that they can all be happy with.
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