Dispute Resolutions

 

Dispute:

·      The assertion of conflicting claims or rights between parties involved in a legal proceeding, ranging from private to large scale disagreements.

 

Dispute Resolution:

·      Refers to all processes that are used to resolve disputes, whether within or outside court proceedings. Dispute resolution processes may be facilitative, advisory or determinative.

·      Dispute resolution processes other than judicial determination are often referred to as ADR.

 

Alternative Dispute Resolution:

·      (ADR) is a method by which legal conflicts and disputes are resolved privately and rather than through litigation.

1.                       Negotiation

2.                       Mediation

3.                       Arbitration

Arbitration

 

·      Method of alternative dispute resolution.

 

·      Non-court procedure where neutral party or parties (arbitrator or arbitration panel) helps make decision.

 

·      Decision is binding and legally enforced.

 

·      Less formal than court, faster & less expensive.

 

·      Hearings and awards are private and confidential.

 

·      Binding arbitration: arbitrator has power to impose a decision.

 

·      Non-binding arbitration: arbitrator recommends decision but cannot impose.

 

 

 

Who uses arbitration?

 

-Financial Organizations

-Health Organizations

-The Construction Industry

-International Commerce

-Labor-management disputes

-Insurance claims

-Securities

-Trade Associations and    aaaProfessional societies

-Private individuals

 

 

 

Adjudication

 

 

·      Most well-known form of dispute resolution.

 

·      Process of decision making that involves a neutral third party with the authority to determine a binding resolution through some form of judgment or award.

 

·      Most commonly occurs in the court system.

 

·      More formal method of dispute resolution.

 

·      Involuntary and adversarial process.

 

·      Deals with both public and private matters. 

 

·      Advantages/Disadvantages

 

Negotiation

 

Definition:

·        A consensual bargaining process in which parties attempt to reach agreement on a disputed or potentially disputed matter.

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Overview

 

·        The vast majority of all civil and criminal cases are settled through negotiation. Low cost and delay.

 

·        Large degree of autonomy by the disputing parties attempting to reach an agreement without the intervention of other parties (ie: judges, litigation, cross-examination, etc)

 

·        Negotiation can either end where A.) the dispute is settled, or B.) the two parties go to court for the litigation process.

 

 

·        There are 2 types of negotiation: Dispute and Transactional

 

·        Transactional: Involves parties planning for a future event

 

·        Examples:- a copyright agreement,

      - drafting an employment contract

      - long term lease.

 

·        Transactional negotiation is often resolved by the parties themselves, but it can still lead to litigation.

 

·        Dispute: The parties are in conflict over an even which has occurred

 

·        Examples: -Breached contract

            - Infringed patent

            - Personal injury which was sustained.

 

·        Dispute negotiation is often a prelude to litigation between opposing parties.

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The 2 Main Approaches to Negotiation: Adversarial and Problem Solving

 

 

·        Adversarial: The primary goal of the lawyer is to maximize individual gain. (winner and a loser)

 

·        There are two types of tactics: Competitive and Cooperative

 

·        Competitive Negotiation: engages in positional bargaining where the negotiator adopts a particular position, advances arguments to support that position, attempting to reach a conclusion that is most beneficial to his/her client.

 

·        Boulwarism: “Take it or leave it;” giving the client’s bottom line and leaving very little opportunity for bargaining. Usually leads to deadlock, or tense sides.

 

·        Stays close to the client’s position by maneuvering and structuring the negotiation process.

 

·        Closely mapped out, catering to the client’s interests

 

·        The main purpose is to create substantial doubt in the mind of the opposition and convince them to reach your terms.

 

·        Lawyers using this approach are viewed as dominating, forceful, aggressive, tough, and arrogant.

 

 

 

 

·       Cooperative: A tactic that is meant to establish a good personal relationship w/ the opponent, and to avoid litigation.

 

·       Initial established positions can be compromised, and concessions are usually made to reach a solution.

 

·       Yet, it remains adversarial because the prime objective is to meet the client’s interest.

 

 

 

·        Problem Solving: This approach focuses on the opportunities for joint, rather than individual gain.

 

·        The dispute or transaction is viewed as a mutual problem that must be solved, not just a game to be won. (ie: competitive adversarial approach).

 

·        Works to cultivate shared interests and construct a win/win situation for both parties.

 

·        Log-Rolling: Offering concessions on some issues in exchange for concessions by the other party. Joint gain usually results.

 

Ethical Issues

 

·       Lying: There are few mechanisms to enforce a requirement of truthfulness.

 

·        Misrepresentation: The act of concealing, or exaggerating a fact, opinion, intention, or law so that the opposing negotiator will rely on it.

 

·        Threats: Characteristic of a competitive, adversarial style; usually results in concessions from the other side.

 

·        Possibility for liability under criminal laws of extortion.

Table 4

Choosing an Adjudicative DR Process (Public or Private)

 

o       Are you concerned about the abuse of power by a public body or official?

o       Are you facing a claim that is genuinely frivolous or opportunistic and that should be tested for its bona fides?

o       Is a legal precedent unavailable and genuinely needed to govern future similar cases?  Do you have the resources to fund the quest for such a precedent?

o       Is it important to label or categorize something in a formal or authoritative way?  For example, is it income or capital?  Does it meet eligibility criteria or not?

o       Do you believe that truth and justice best come about through an adversarial enquiry?

o       Do you need coercion (someone else’s order or authority) to:

a)     ensure participation;

b)    obtain information or get disclosure;

c)     enforce an outcome; or

d)    enforce collective values or societal rules?

o       Do you genuinely need an interpretation of the wording of a statute or regulation such as the Constitution?

o       Do you genuinely need an assessment of whether something conforms to a statute, regulation or higher, more authoritative text?

o       Does an impasse exist which cannot be resolved by negotiation or other procedure such as voting?

o       Are the people involved (principals or agents) unable or unwilling to take responsibility for the outcome so that someone else has to do it?

o       Are the people involved unable or unwilling to convert positions into interests?

o       Are the people involved unable or unwilling to engage in “recognition” (i.e., to acknowledge the vantage points, interpretations, versions, needs, wants, concerns of the other party)?

 

 

Bypass Court.: A Dispute Resolution Handbook., Third Edition. Genevieve A. Chornenki & Christine E. Hart. LexisNexis Canada Inc. 2005 Pg. 20-21.

 

 

Resources

·        wordnet.princeton.edu/perl/webwn

 

·        http://www.legalranks.com/alternative-dispute-resolution.htm

 

·        http://www.oninformation.com/Legal/LegalGlossary/Arbitration.htm

 

·        http://www.legaldefinitions.com/arbitration.htm

 

·        http://www.nolo.com/definition.cfm

 

·        www.divorcesource.com/VA/ARTICLES/cullison2.html