Life in society consists of a series of everyday human interactions. People communicate and cooperate daily to achieve their basic needs and more complex goals.
Social interactions involve contact between people with diverging interests. Successful cooperation requires coordinating these interests using various informal and formal techniques. Failing to put opposite interests into alignment causes disagreement, leading to a legal dispute.
Each society prefers avoiding disputes and enabling social cohesion. Traditional dispute resolution methods are a wiser solution than engaging in an open conflict and civil unrest. But they are costly, lengthy, and often ineffective.
In promoting cooperation, the alternative dispute resolution concept offers a spectrum of dispute prevention and resolution methods.
The optimal ADR strategy combines multiple dispute prevention, control, and resolution techniques.
Below are four groups of ADR techniques that give the best results as a system of coherent step-by-step processes.
The best dispute resolution strategy is avoiding disputes in the first place. The ADR concept involves various prevention and cooperation techniques that deal with disagreements before the dispute arises.
First, to avoid disputes, the parties should allocate risks and balance their obligations so that each party deals with risks they can successfully manage.
Next, the key to preventing disputes is giving incentives for cooperation. The parties are more likely to collaborate if they have financial and other incentives. Encouraging collaboration is possible through a system of bonuses and similar incentives.
Identifying and analyzing sources of potential disputes is another strategy parties should undertake jointly. Going back through previous disagreements that caused conflicts and analyzing their triggers is the best way to investigate sources and prevent future disputes.
Also, engaging in joint activities that establish cooperative relationships through team-building is an effective dispute preventive strategy. The process usually involves the help of a professional facilitator who incentivizes parties to participate in partnering efforts.
The best way to address problems is through early resolution techniques such as negotiation. Negotiation is an informal method. Informal negotiation does not involve a neutral third person who acts as a facilitator. In negotiation, parties identify problems and seek ways to resolve them through voluntary and informal talks until they reach a mutually beneficial agreement.
When individuals involved in negotiation cannot settle disagreements, they often elevate problematic issues to higher levels within their organization. That is called issue elevation. If their efforts turn unsuccessful, the matter goes to upper-level managers. By resolving issues at a lower level, negotiators demonstrate problem-solving capabilities. The key to this form of negotiation is that mid-level negotiators have strong incentives to resolve matters of concern through negotiation before these issues reach their superiors.
Another de-escalating method is using the ombuds. A neutral party, ombuds work within governmental agencies, universities, and other institutions. They receive complaints from employees or clients and investigate their allegations. However, they can issue only non-binding recommendations, meaning they do not have decision-making authority.
Finally, there are persons (or a group of people) called standing neutrals. The parties appoint them at the beginning of their relationship to stand by and be available in case a dispute arises. Their effectiveness stems from the trust parties rely upon them and their ability to provide advice in real-time. Often, parties refrain from breaching the obligations, aware that standing neutrals are watching, so their mere existence has dispute preventing effect.
When the dispute arises, countless non-binding resolution methods are available: case evaluation, facilitation, mediation, med-arb, summary advisory arbitration, summary jury trial, family group conference, etc. Using these methods, the parties can resolve conflicts consensually.
However, the most famous (and most effective) non-binding dispute resolution method is mediation, offering numerous advantages over traditional litigation. As a neutral, confidential, and voluntary process, it stands out among other non-binding dispute resolution techniques.
The mediator is a neutral third person (often a retired judge or another professional) with profound knowledge and understanding of contractual relationships. The parties choose the mediator voluntarily by signing the agreement to mediate. That is the opposite of a court process where an assigned judge conducts the procedure and issues a binding decision. Unlike a judge, the mediator cannot decide the dispute by issuing a decision. A Mediator’s role includes facilitating communication and negotiations between the parties, thereby helping the parties settle.
Furthermore, Mediation offers complete confidentiality. Parties are assured that nothing revealed during negotiations will leave the session room. Accepting the confidentiality clause, the parties agree to keep all details private. Even if the Mediation is unsuccessful, information acquired through Mediation is not allowed in future litigation.
The Mediation process typically consists of a Mediator’s introduction, attorneys’ opening statements in a joint session, and attorneys and parties in separate, private sessions with the Mediator. After a brief introduction, the mediator presents his or her qualifications and explains the procedure to the parties. In private sessions, parties talk with the mediator in separate rooms. The mediator goes back and forth between the private rooms, assisting parties to understand the strengths and weaknesses of their case, discussing their settlement options, and aiding in the resolution of the controversy. During Mediation, the Mediator may meet separately with attorneys to help fashion a settlement. The mediator facilitates the negotiations between the parties to settle the dispute and avoid additional litigation.
What differentiates Mediation from adversarial methods is its reconciliatory aspect. The mediator seeks dispute resolution beyond monetary compensation in the appropriate case. As a result, the parties may continue their relationship after resolving the dispute.
If the Mediation is successful, the parties sign a binding agreement settling their dispute, enforceable in court.
Some dispute resolution processes have a binding effect, meaning they provide the parties with the final resolution or refer them back to non-binding processes. The most common are arbitration, arb-med, private judging, neutral fact-finding, settlement conference, etc.
The best known is arbitration.
Arbitration is similar to traditional litigation, which is why it is often referred to as a trial without court.
While litigation is a trial in front of a government institution by state-appointed judges and a jury, there is no judge or a jury in arbitration.
The disputed parties entrust the resolution of their conflict to an arbitrator or panel of arbitrators, usually former judges or attorneys. The parties choose the arbitrators by signing an arbitration agreement (often a clause in the existing contract).
Unlike meditation, the arbitration ruling is mandatory, meaning the arbitrators have decision-making authority. In non-binding arbitration, the arbitrator provides the parties with advice and insights on resolving the dispute.
Arbitration is less formal than litigation, lacking strict rules of evidence in a court trial. Contrary to litigation, a discovery has a much narrower scope, leading to lower costs, and the process allows depositions of expert witness testimonies in the hearing. In evaluating evidence, the arbitrators have significant discretion, often resolving the dispute based on their sense of fairness, regardless of rules.
As a distinguished mediator, arbitrator, and neutral evaluator, Mr. Farina excels at utilizing a full spectrum of dispute prevention and resolution methods to help parties reach the best possible outcomes.