Dispute Resolution processes are used to resolve a case, dispute or conflict. They can also be alternatives to having a court, whether by judge or jury, or other institutions, resolve the cause of action or claim arising from the parties’ dispute.
On a continuum from consensual to adversarial, negotiation followed by mediation are the most consensual and arbitration followed by litigation are the most adversarial. The more consensual the process, the more control the parties have. And, the more adversarial the process, the less control they have.
Dispute resolution processes such as negotiation and mediation are an appealing alternative to arbitration and litigation due to their more consensual and less adversarial nature, their tendency to preserve rather than destroy relationships, their capacity to optimize the parties’ control, their ability to be customized specifically to the parties and their dispute, and their likelihood of costing the parties less time, energy and money. In some dispute resolution processes, the parties are not required to have an attorney to participate. When a court has ordered that they participate in a dispute resolution process, attorneys often participate as their respective advocates or counselors.
Negotiation and mediation are also an appealing complement to arbitration and litigation, not only due to the same reasons that they are an appealing alternative, but also because, during negotiation or mediation, the parties can gauge whether their dispute resolution process is likely to succeed or whether another process is more viable. Both negotiation and mediation are problem-solving processes that enable the parties to dialogue effectively to better understand themselves, each other, and their goals and options in the process. Not only are such communication and clarity beneficial should the parties later decide to use a different dispute resolution process, but agreeing to participate in negotiation or mediation alone can be an empowering step towards peaceful resolution.
While the private and voluntary aspects of negotiation and mediation are empowering to the parties in dispute, the neutrality of a professional negotiator and mediator utilizing facilitative techniques combined with critical thinking tools enhances that empowering effect on the parties and their dispute resolution process. Professional preparation enables the parties to resolve their dispute in a collaborative, consensual, confidential and informed manner. Moreover, the preparation process not only prepares the parties to resolve their dispute, but should they decide after engaging in negotiation or mediation to use a different dispute resolution process, they will enter that process better prepared.