眾律國際法律事務所

Dispute Resolution              

There are various dispute resolution techniques that you can possibly use resolving conflicts. They are:

Negotiation:

Negotiation is a process whereby two or more parties seek to reach a mutual agreement. There may be no third party involvement during the negotiation, therefore the principals usually act for themselves or have their legal representatives to act for them. 

Below is a summary of advantages and disadvantages of using the Negotiation technique for dispute resolution.

Advantages of Negotiation

• Parties with their lawyers are in best position to assess proposed solutions
• Compromise often offer parties at least some of what they want
  • (note: court may not give them any of what they want)
• Parties might not resolve all issues but may narrow them

Disadvantages of Negotiation

• If there is no adequate preparation, a party can agree to a settlement outcome well below what a court may order
• May not have valuations, adequate medical evidence to properly assess case
• A party may feel that they were pushed too far
• A party may agree to an unfair agreement due to inequality of bargaining power/coercion

Mediation

Mediation is a process where an independent third party mediator assists two or more parties to reach a mutual agreement. The mediator’s role is to facilitate communication between parties rather than providing legal or any other advices.

During the mediation process, mediator will aim to engage parties in constructive communication.

Conciliation

Conciliation is similar to mediation in that a third party conciliator assists two or more parties to reach a mutual agreement. However, the conciliator is different from a mediator for which a conciliator will offer expert advice as to how the dispute should be resolved.

Below is a summary of similarities and differences between mediation and conciliation.

Similarities between Mediation* and Conciliation

• Mediator and conciliator are considered impartial third parties
• Both processes identify disputed issues, develop options, consider alternatives and try to reach an agreement
• Neither mediation or conciliation are determinative processes, conciliator may advise on likely outcomes but won’t decide the dispute.

Differences between Mediation* and Conciliation

• Conciliator may have an advisory role regarding the content of the dispute for which mediator does not.
• Conciliator may advise on the outcome of a dispute
• Conciliator may suggest terms of settlement
• Conciliator may give expert advice on potential court outcomes
• Conciliator may actively encourage parties to reach an agreement. However mediator won’t push for agreement.

Mediation-Arbitration

Mediation-Arbitration is a combination of mediation and arbitration. A third party will encourage parties to settle their dispute by normal mediation process but if this fails, the mediator has the power to give advice on outcomes or even impose decisions. This technique is commonly used by statutory bodies dealing with personal injury claims, consumer claims or administrative appeals.

Arbitration & Litigation

Arbitration is a cheaper alternative to litigation where the parties to a dispute agree to be bound by the decision of a third party (usually a retired judge or barrister). Litigation on the other hand, is a process of making an application in court to resolve a dispute.

Below is a summary of similarities and differences between arbitration and litigation.

Similarities between Arbitration & Litigation

• Adversarial
• Impartial third party makes binding decision
• Lawyers often involved to argue case
• A formal process where parties may agree to have the rules of evidence apply

Differences between Arbitration & Litigation

• With the exception of court-ordered arbitration, requires the consent of parties
• Private (as opposed to a public hearing in a court)
• Arbitrator usually selected by parties (cf: judge)
• Result binding only on the parties to the case (no precedential value)

Litigation arguably provides a higher order of justice than any other process because it involves strict checks and balances against unbiased exercise of power; strict procedural protections to protect parties who are subject to power imbalances, decisions arising out of litigation are legally binding and enforceable, if one of the parties is dissatisfied with the decision, usually there would be avenues of appeal and lastly, court decisions provided certainty and predictability.

On the other hand, litigation can be expensive and may take a long time to resolve disputes. The court system is extremely difficult to understand without legal assistances. The adversarial model intensifies conflicts as such system would not focus on differences and negative past behavior rather than compromise and the protection to preserve relationships. The adversarial system is a system that resolves cases based on the facts and law presented to the court rather than searching for deeper truth. Lastly, court processes are inflexible and litigation does not allow for creativity in remedies.