Alternative Dispute Resolution vs Dispute Resolution
There is some debate right now about whether the term dispute resolution or alternative dispute resolution is the proper name for Arbitration, Mediation and other options that are not litigation. The folks who want to keep alternative in the name see the traditional dispute resolution mechanism as being litigation and all other options as alternatives. The other camp correctly points out that there is no reason to assume litigation as the norm. They point out that most disputes (even without the possibility of mediation or arbitration) are handled by direct negotiations.
In the end, the semantic detail of sticking with Alternative Dispute Resolution or evolving to Dispute Resolution isn’t necessary to talk about the options available. Essential to this discussion is that here we will use the term alternative dispute resolution to include everything from direct negotiation to the point just prior to litigation.
Types of Alternative Dispute Resolution
- Positional Bargaining
- Interest Based Bargaining
- Facilitated Negotiations
- Settlement Council
- Collaborative Law
- Evaluative Mediation
- Facilitative Mediation
- Transformative Mediation
- Early Neutral Evaluation
- Mediation Arbitration
- Healing Circles
Negotiations taking place between two parties generally involve some discussion of the matter at hand or proposed deal and offers going back and forth. Negotiation occurs in virtually any potential deal or conflict. The contents of these discussions depend on which type of bargaining the parties choose as a strategy.
In positional bargaining each side adopts a position. Generally there is an understanding that the positions taken will come closer and closer together until the middle ground is found.
In interest based bargaining the parties to a negotiation discuss each other’s interests in coming to a deal. Disagreements are overcome by appealing to outside objective standards. All parties avoid weakening their position by knowing what will happen if they can’t reach a deal.
When negotiations between parties are aided or facilitated by other people the negotiations are facilitated. The other people can be advocates or they can be neutrals.
Settlement council are lawyers who prepare for negotiations with a view to settlement. They may work independently of litigation council or they may be retained as a first step to obtain settlement. Settlement council do not focus on rules of evidence and strategic for a trial. Instead they focus on creating acceptable options that can help their client.
Collaborative Law is a way of dealing with divorce that focuses on the parties working together to transition out of a marriage. Lawyers are retained by both parties and the lawyers agree that they are excluded from representing their respective parties should the process fail. The focus for collaborative lawyers is the needs of the parties in moving forward. Several US jurisdictions have added statutory support for collaborative law through the passage of Uniform Collaborative Law Acts and similar legislation.
In Evaluative Mediation the mediator evaluates the merits of each side’s argument and points out where their argument or case may fail. They offer their evaluation of positions taken. It is often the quickest of the types of mediation. The goal of the mediator is not to rebuild relations, create understanding or empower the parties; the goal is the deal.
Facilitated mediation focuses the parties to a conflict on a process so they can discuss their interests and find common ground. The parties and the mediator work together to generate a number of potential solutions. Once generated,the solutions are sorted through in an attempt to find the one that has maximum value to the parties. The mediator is there as a guide for the process. This type of mediation boasts high user satisfaction and durable settlements.
In Transformative Mediation the neutral is concerned less with the conflict at hand and more with transforming the state of the parties into one that can resolve their own dispute. It can be well suited to disputes where an ongoing relationship that will continue to experience novel challenges exists. The most notable example of such a situation would be a divorce with children involved. Parents have a need to create a relationship where they can solve issues that come up in the course of raising children.
Early Neutral Evaluation is another form of alternative dispute resolution that uses an expert neutral to hear evidence with relaxed rules to make a prejudgement on the case at hand. Generally this is done before depositions and other procedures that increase costs for the parties. Early Neutral Evaluation is non binding but helps inform the parties about how their case may proceed. Since it provides information about what may be one or both parties BATNA (Best Alternative to a Negotiated Agreement) it may help break impasse.
Arbitration is a process where the parties select an independent third party neutral to hear evidence, determine the facts and make a decision. In some cases the parties may agree to limit the arbitrator at the outset. The parties may agree on facts and ask the arbitrator to rule solely on the application of the relevant law. Conversely, the parties may disagree about the fact but agree of the consequences of a certain fact set and ask the arbitrator to make a finding of fact based on the evidence available.
A hybrid between mediation and arbitration, Mediation Arbitration or Med-Arb is a process that begins as mediation and if the mediation fails becomes arbitration with the same neutral.
Based on traditional first nations beliefs, a healing circle people is where parties in conflict gather to resolve their issue. A circle keeper, who is not one of the parties to the conflict but who participates fully as an equal guides the parties through the process. The goals for a healing circle include: promoting understanding, sharing common experiences, building trust and solving problems.
Our Approach to Mediation
Wakely Mediation provides employment, workplace, grievance and collective bargaining mediation. We believe that the process of mediation needs to be tailored to the needs of the parties and to the specific case. Our philosophy is that mediators can work to help all parties find value in mediation. If you are interested in learning more about how Wakely Mediation can help you in your dispute, please contact us for more information.
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