Overview of Dispute Resolution
Dispute Resolution (DR) is a collective term for a range of processes for resolving disputes.
The processes can be divided into two distinct categories, those provided by the state through its legal system and those that are said to be alternatives to state process and which are referred to generically as Alternative Dispute Resolution (ADR) processes.
The State Legal System
The state legal system provides the necessary structure and resources for the resolution of many disputes. Some disputes require the coercive power of the state to obtain and enforce a resolution.
The most common form of judicial dispute resolution is litigation. By necessity, state litigation is adversarial in nature (i.e. a contest involving antagonistic parties or opposing interests competing for an outcome most favorable to their positions) technically formal, and constrained by rules.
Because of the formality of the process and resource limitations that are placed on the legal system by competing fiscal constraints and public demands for justice, litigation is said by commentators to be too slow and too expensive and to have largely lost commercial and practical credibility.
Private Dispute Resolution (ADR)
On the other hand, private Disputes Resolution processes including negotiation, mediation, adjudication, expert determination, early neutral evaluation and arbitration (there are of course many others including various hybrids of the aforementioned processes) generally depend on agreement between the parties, either before or after the dispute has arisen.
Alternative Dispute Resolution (ADR) has experienced steadily increasing acceptance and use because of a perception of greater flexibility, informality, confidentiality, speed, and costs below those of traditional litigation.
An explanation of the various private ADR processes follows:
Negotiation is the primary method of dispute resolution used by parties in conflict to resolve disputes.
Negotiation is an informal, infinitely flexible process whereby parties, or their representatives, bargain with each other for individual or collective advantage for the purpose of reaching an agreement on courses of action and/or for crafting an outcome that best meets their mutual interests.
Negotiation is the least formal and least expensive process for resolving disputes, but its efficacy is dependent on the parties’ ability to enter into meaningful and constructive dialogue in good faith without the assistance of a third party.
Negotiation should always be the first process utilised by a disputant to attempt to resolve disputes, but for obvious reasons, many parties are simply unable to disentangle and remove themselves sufficiently from their sense of grievance and the emotional stress, the detail and other drivers of the dispute, to negotiate effectively without the assistance of a third party.
Mediation is a consensual, confidential and relatively informal negotiation process in which parties to a dispute use the services of a skilled and independent third party called a mediator to assist them to define the issues in dispute, to develop and explore settlement options, to assess the implications of settlement options and to negotiate a mutually acceptable settlement of that dispute which meets their interests and needs.
Generally, any agreement reached will be recorded in writing and will be binding on the parties. Any party to such an agreement may enforce its terms by issuing court proceedings.
Mediation has the advantage of assisting in repairing and/or preserving business relationships where adversarial proceedings may not. Mediation is a particularly effective process in circumstances where there needs to be an ongoing relationship between the parties.
Conciliation is a process that is similar to mediation, and indeed the terms are often used interchangeably in New Zealand, however the real distinction lies in the more active role in the process that is played by the conciliator.
Unlike a mediator, a conciliator will often act as a conduit communicating information between the parties, acting as an information resource or expert, providing an opinion on the case and having an advisory, but not determinative role, in relation to identifying the issues, developing settlement options and assisting the parties reach an outcome.
Facilitation is a process in which a person who is acceptable to all members of a group, substantively neutral and who has no decision making powers or authority, intercedes to guide and help the group improve the way it identifies and solves problems and makes decisions.
Whereas mediation is a process in which the mediator serves as an intermediary between parties for the purpose of assisting them to find a resolution of their dispute that is acceptable to them, facilitation is a process designed to make group problem/conflict solving easier or more likely to occur by improving the members’ ability to deal directly with each other and to work together effectively.
The facilitator will guide much of the process that the members of the group use to work with one another so that the group can focus on the content. Contrary to a common misconception the facilitator is not a mediator, evaluator, or information resource. The facilitator will not provide opinion and will not convey preferences for any solutions the group considers.
The facilitator’s main role is to help the group improve its process for solving problems and making decisions so that it can achieve its goals and increase its overall effectiveness.
A group may seek facilitation because the members recognise that they do not have skills sufficient to manage the process of what is expected to be a difficult discussion, consultation process and/or to solve a substantive problem.
Facilitating large groups dealing with significant community and public policy/interest issues where there is a high level of energy and/or conflict is challenging and it is common for facilitators to work together as co-facilitators to better serve the same group.
Expert determination is a simple means of binding dispute resolution. Expert determination is a consensual, confidential and relatively informal process whereby parties to a contract agree to refer matters in dispute to an independent person to decide. The independent person is selected because the person is respected as having expertise relevant to the matters in dispute between the parties.
Expert Determination can provide either a binding or non-binding determination (subject to agreement by the parties) without involving many of the formalities that can beset more formal processes such as arbitration and litigation.
A determination which the parties have agreed shall be binding on them may be enforced by a party to the process issuing court proceedings.
Expert determination also has the advantage of assisting in preserving business relationships where strictly adversarial proceedings may not.
Early Neutral Evaluation
Early Neutral Evaluation is a confidential, settlement oriented dispute resolution process that produces a non-binding evaluation of the facts, evidence and legal merits of a case by an independent neutral third party.
The Objective of Early Neutral Evaluation is to position the case for early resolution by settlement or trial by providing the parties with guidance as to the likely outcome if the dispute were to be heard by a court in the form of an independent Evaluation of the facts, evidence and legal merits of the matters in dispute.
Although settlement is not the primary objective, the Purpose of Early Neutral Evaluation is to promote settlement discussions at an early stage in the litigation process, or at the very least to assist parties to avoid the significant time and expense associated with further steps in litigation.
Dispute Review Boards
Dispute Review Boards (DRBs) are normally set up at the outset of a contract and remain in place throughout its duration. Generally comprising one or three members thoroughly acquainted with the contract and its performance, the DRB informally assists the parties, if they so desire, in resolving disagreements arising in the course of the contract and it makes recommendations or decisions regarding disputes referred to it by any of the parties. DRBs have become a standard dispute resolution mechanism for contractual disputes arising in the course of mid or long term contracts.
Adjudication is a unique fast track statutory dispute resolution process for resolving building and construction disputes under the Construction Contracts Act 2002 with the primary purpose of improving cashflow.
Adjudication is a quick and relatively inexpensive process for resolving building and construction disputes whereby the parties refer the matters in dispute to an independent and impartial person called an adjudicator who decides the disputed matters according to the substantive law of New Zealand in the form of a Determination.
Adjudication will almost certainly be quicker and less expensive than litigation through the courts.
Arbitration is a formal dispute resolution process whereby two or more parties agree to submit all or certain disputes between them to an independent person called an arbitrator for a binding decision. Arbitration is entered into by agreement and the process is governed by the Arbitration Act 1996 and the Arbitration Amendment Act 2007.
An arbitrator’s decision, called an award, is binding on the parties and is enforceable as a judgment of the Court.
If you are unsure which process is most relevant for your situation, please contact us on (09) 486 7143 or at email@example.com.