Lawyers are called upon to resolve disputes in a wide variety of contexts. In addition to negotiating and going to trial, they also assist clients with dispute resolution options such as mediation and arbitration.
Mediation is a process whereby a neutral third party assists the disputing parties in a conversation. It allows parties to vent their feelings, explore their positions and build a healthy communication.
Dispute resolution lawyers are in a unique position to assist their clients in resolving disputes. They follow all legal processes, including discovery and motions, and work with the client to find the most expeditious and least expensive way of resolving the dispute.
Whether the dispute is commercial or personal, they can help their client determine which method will be best to settle. Often, their clients want to resolve the dispute as quickly as possible to avoid the high costs and inconvenience of litigation.
When dealing with family law, the Divorce Act (now in force as of March 1, 2021) makes it a legal duty for your legal adviser to encourage you – as their client – to try solve issues through alternative dispute resolution if that is appropriate. These options include conciliation, negotiation and mediation.
Negotiation is a form of dispute resolution that involves communicating and working together to reach an agreement. Ideally, the outcome of negotiations benefits all involved.
When negotiating, it is crucial to understand your counterpart’s perception of the range of outcome values as well as the target (goal) and bottom line. By focusing on these factors, you can better capture your counterpart’s value and work towards a compromise that is mutually beneficial to both parties.
One of the most important tools of negotiation is empathy, which helps to create a smooth and collaborative give-and-take interaction. This is especially vital when dealing with others who have varying gender, cultural or linguistic backgrounds.
Negotiations can take a variety of forms, ranging from single-party to multi-party. They are often led by a neutral third party, such as a mediator or arbitrator. They can be conducted in a public or private setting.
Mediation is an alternative dispute resolution method in which a neutral third party helps the parties resolve their conflict without going to court. It allows parties to manage their risks, including the costs and uncertainties of trial or other proceedings, and can result in a finality and closure that may be difficult to achieve in other litigation procedures.
It can also help preserve and transform relationships, such as work and family. Because mediation is less adversarial than court proceedings, it can create better communications and understanding between the parties.
The mediator will assist the parties in understanding each other’s positions and interests in order to reach a mutually acceptable solution to their dispute. The mediator will also help the parties think “outside the box” to broaden their options and explore possibilities for settlement.
It is important for the mediator to be impartial and have substantial training and experience in the subject matter of the dispute. Often, in complex disputes with highly specialized and technical subject matters, the parties will wish to consider a co-mediator who is both a subject-matter and process specialist.
Arbitration is an alternative dispute resolution (ADR) process where the parties to a lawsuit agree to submit their dispute to an impartial third party. It is often used to settle complex, high-stakes legal issues without going to court.
Generally, arbitration is quicker and less expensive than trying a case in court. It can also save a claimant thousands of dollars in appearance fees for experts alone.
In most cases, the arbitration process starts with one of the parties filing a demand for arbitration, which usually outlines what the dispute is about. Then the other party files a response.
Next, the parties select a neutral arbitrator and the hearing begins. The arbitrator reads briefs, documents and testimonies, listens to testimony, examines evidence, and renders an opinion on liability and damages in the form of a ‘decision’ or ‘award’.
The arbitrator’s decision is final, and it cannot be reviewed or overturned in court. Moreover, the award is confidential, and therefore not publically published.