When most people think of resolving disputes in the legal system, they think of litigation and prosecution. This is of no surprise since the media focuses on these two processes. In the 1970’s, law school teaching also focused on these two processes.
Paradoxically, most disputes are settled in the legal system without litigation and prosecution. In fact, it is estimated that 98% of all civil disputes are in one way or the other settled outside of litigation and that 95% of all criminal charges are settled through such processes as plea bargaining.
The Umbrella Frame for Dispute Resolution Processes
One might organize dispute resolution processes along a continuum ranging from the left, where parties have great control over their disputes, to the right, where parties give up power and control over their disputes to an outside third party whether - that be an arbitrator or judge. So, on the left of the umbrella handle, parties have much control over their dispute via negotiation and mediation. On the right of the handle, parties give control over to third parties, such as an arbitrator or a judge or a jury.
Communication and negotiation skills umbrella over all of the dispute resolution processes. Communication and negotiation skills are vital.
Dispute Resolution Processes:
Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments.
Arbitration is different from mediation because the neutral arbitrator has the authority to make a decision about the dispute. The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator.
Case evaluation is a non-binding process in which parties to a dispute present the facts and the issues to be determined to an experienced neutral case evaluator. The case evaluator advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator. The parties may then use this feedback to help reach a mutually agreeable resolution.
Collaborative Law of Collaborative Practice is an out-of-court settlement process where parties and their lawyers try to reach an agreement satisfying the needs of all parties and any children involved. The parties agree to provide all relevant information
Early neutral evaluation is a process that may take place soon after a case has been filed in court. The case is referred to an expert, usually an attorney, who is asked to provide a balanced and unbiased evaluation of the dispute.
Facilitation is a process in which a trained individual assists a group of two or more people to discuss issues to be addressed by the group. This may include assistance in defining and analyzing issues, developing alternatives, and executing the agreed upon solutions. A facilitator can help to enhance communication.
Litigation is a process for handling disputes in the court system. Litigation is a contested action, where someone else, such as a judge, may make the final decisions for the parties unless the parties settle before trial.
Mediation is a private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute. The parties have the opportunity to describe the issues, discuss their interests, understandings, and feelings, provide each other with information, and explore ideas for the resolution of the dispute.
A mini-trial is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a trial. The presentations are observed by a neutral advisor and by representatives (usually high-level business executives) from each side who have authority to settle the dispute.
Ombuds are found in a wide variety of programs worldwide, including programs that advocate on behalf of a designated constituency, those that follow the traditional public model of ombuds with an investigative function, and those within public or private organizations that often operate according to an organizational charter and recognized standards of practice, rather than a legislative or government mandate.
Neutral fact-finding is a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes.
Private judging is a process where the disputing parties agree to retain a neutral person as a private judge. The private judge, who is often a former judge with expertise in the area of the dispute, hears the case and makes a decision in a manner similar to a judge.
A settlement conference is a meeting in which a judge or magistrate assigned to the case presides over the process. The purpose of the settlement conference is to try to settle a case before the hearing or trial.
In summary jury trials, attorneys for each party make abbreviated case presentations to a mock six-member jury (drawn from a pool of real jurors), the party representatives and a presiding judge or magistrate. The mock jury renders an advisory verdict. The verdict is frequently helpful in getting a settlement, particularly where one of the parties has an unrealistic assessment of their case.
Other dispute resolution processes may include Family Group Conference, Multi-Door Program, Parenting Coordinator, Pro Tem Trial or Special Master.
This movement towards incorporating a variety of dispute resolution processes into the legal system is often referred to as ADR, meaning alternative dispute resolution. The “alternative” meant an alternative to the adversarial process. But, some attorneys and judges thought it might mean an alternative to them, so they began to change the adjectives.
-IDR=improved dispute resolution, was used in Los Angeles
-PDR=peaceful, coined by former Ohio Governor Richard Celeste, former Director of the US Peace Corps
-FDR=flexible, used by the Trial Lawyers association.
-EDR=effective, New Jersey.
-ADR=appropriate, Massachusetts returned to ADR.
Maybe the best advice is to eliminate the adjectives and simply call the field dispute resolution.
The ADR movement has transformed the legal system, the legal profession, and law school teaching. Now, there are many more ways of resolving legal disputes.
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Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education
The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2. Prudence Bowman Kestner and Larry Ray
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Getting Your Way Every Day.