The most commonly recognized form of legal dispute resolution is litigation. Many people think they understand litigation, because court trials fill television programming schedules and take up a fair share of bestseller lists, especially in the United States. In reality, however, most legal cases are effectively resolved using alternative dispute resolution strategies. These dispute resolution methods include negotiation, alternative mediation, collaborative law, and binding and non-binding arbitration. Such dispute resolution methods are significantly less expensive than litigation, less adversarial, and result in a faster end to the dispute. What is considered the best of these methods is likely to depend on the circumstances of the dispute.
When examining alternative dispute resolution strategies, the most common is negotiation. In negotiations, the parties temporarily set aside their anger to reach a reasonable resolution of their dispute. Whether they are all together in a conference room or conversing via the telephone, negotiating parties are free to discuss any topic relevant to the disputed matter. This is a voluntary process, and still a bit adversarial in nature.
It is not uncommon for a court to require that the parties sit down for a formal settlement conference before their matter is even allowed to be put on the court’s trial schedule. Furthermore, while negotiation requires no third party facilitator, a judge may casually fill this role. While meeting in chambers with the parties’ attorneys, the judge may share how certain legal arguments will likely be resolved in his court, thus encouraging one party or the other — or both — to be more sensible. In this manner, he promotes an out-of-court settlement.
In mediation, a third party facilitator known as the mediator helps the parties achieve dispute resolution. In the mediation process, the mediator helps create a working strategy or outline to be followed when discussing and resolving the dispute. He then makes sure the parties stick to the agreed upon topics when discussing their issues. Mediation may take place with only the parties and the mediator present, or it may involve their legal representatives.
Mediation provides an environment where even apologies may be exchanged, particularly in domestic relations cases. It is a less formal, more human way of reaching a resolution. There are professional mediators, quite often attorneys, offering their services all over the country. Before one can be a certified mediator, he must attend special dispute resolution training.
Collaborative law is another form of alternative dispute resolution commonly used in divorce actions. In a collaborative law case, two lawyers are retained and sign contracts agreeing to facilitate open and civilized negotiation of the divorce settlement. If they fail, pursuant to their contract, the lawyers agree to resign.
In collaborative law, the parties work together to organize a joint financial picture, which is then used to create a fair settlement. The negotiation and preparation of the parties’ divorce agreement takes place through a series of polite settlement conferences. As long as each party continues to participate, the lawyers will prepare the paperwork and help the parties move toward an agreed upon dissolution of marriage.
If negotiations fail, and the lawyers are forced to resign, the parties will be placed in the unenviable position of having to hire new lawyers and start over. It is this second set of lawyers that takes on the job of litigating the divorce. It is the transparency — the fact that both parties have access to the same financial records without fighting for them — and the knowledge that the parties must start over with a new lawyer if they cannot reach settlement that makes this a highly effective dispute resolution method.
Arbitration is perhaps the most complex of the dispute resolution methods. It is usually voluntary, and it can be either binding or non-binding on the parties. Arbitration clauses are common in many contracts as a way of resolving seller-purchaser disputes. Many trade organizations also offer arbitration services to help resolve issues between their professional members and their clientele. For example, many bar associations offer to arbitrate attorney-client fee disputes.
Non-binding arbitration is becoming a common requirement before a court will allow a matter to be litigated. In this form of arbitration, the parties present summaries of their evidence to a panel of three judges, typically attorneys, who hand down a decision on the case. The parties can accept this decision as indicative of what will happen at trial or ignore it and push on with traditional litigation.
Litigation offers disputing parties the least amount of control over their circumstances. When litigating, the parties make their case and a stranger makes the final decision. By using one of the dispute resolution methods presented as an alternative to litigation, some element of control is returned to the parties directly involved.