Dispute resolution

Dispute resolution or dispute settlement is the process of resolving disputes between parties. The term dispute resolution is sometimes used interchangeably with conflict resolution, although conflicts are generally more deep-rooted and lengthy than disputes.[1] Dispute resolution techniques assist the resolution of antagonisms between parties that can include citizens, corporations, and governments.

Alternative dispute resolution
or External dispute resolution

Methods

Methods of dispute resolution include:

One could theoretically include violence or even war as part of this spectrum, but dispute resolution practitioners do not usually do so; violence rarely ends disputes effectively, and indeed, often only escalates them.

Dispute resolution processes fall into two major types:

  1. Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome.
  2. Consensual processes, such as collaborative law, mediation, conciliation, or negotiation, in which the parties attempt to reach agreement.

Not all disputes, even those in which skilled intervention occurs, end in resolution. Such intractable disputes form a special area in dispute resolution studies.[2]

Dispute resolution is an important requirement in international trade, including negotiation, mediation, arbitration and litigation.[3]

The legal system provides resolutions for many different types of disputes. Some disputants will not reach agreement through a collaborative process. Some disputes need the coercive power of the state to enforce a resolution. Perhaps more importantly, many people want a professional advocate when they become involved in a dispute, particularly if the dispute involves perceived legal rights, legal wrongdoing, or threat of legal action against them.

The most common form of judicial dispute resolution is litigation. Litigation is initiated when one party files suit against another. In the United States, litigation is facilitated by the government within federal, state, and municipal courts. The proceedings are very formal and are governed by rules, such as rules of evidence and procedure, which are established by the legislature. Outcomes are decided by an impartial judge and/or jury, based on the factual questions of the case and the application law. The verdict of the court is binding, not advisory; however, both parties have the right to appeal the judgment to a higher court. Judicial dispute resolution is typically adversarial in nature, for example, involving antagonistic parties or opposing interests seeking an outcome most favorable to their position.

Due to the antagonistic nature of litigation, collaborators frequently opt for solving disputes privately.[4] Indeed, the involvement of lawyers does not always signal the end of a collaborative relationship. The duration of the exchange or the familiarity with exchange partners are important factors impacting the willingness of the firm to resolve disputes. Such impact is contingent on whether a cooperative norm has been developed through the course of the collaboration.[5]

Retired judges or private lawyers often become arbitrators or mediators; however, trained and qualified non-legal dispute resolution specialists form a growing body within the field of alternative dispute resolution (ADR). In the United States, many states now have mediation or other ADR programs annexed to the courts, to facilitate settlement of lawsuits.

Extrajudicial dispute resolution

Some use the term dispute resolution to refer only to alternative dispute resolution (ADR), that is, extrajudicial processes such as arbitration, collaborative law, and mediation used to resolve conflict and potential conflict between and among individuals, business entities, governmental agencies, and (in the public international law context) states. ADR generally depends on agreement by the parties to use ADR processes, either before or after a dispute has arisen. ADR has experienced steadily increasing acceptance and utilization because of a perception of greater flexibility, costs below those of traditional litigation, and speedy resolution of disputes, among other perceived advantages. However, some have criticized these methods as taking away the right to seek redress of grievances in the courts, suggesting that extrajudicial dispute resolution may not offer the fairest way for parties not in an equal bargaining relationship, for example in a dispute between a consumer and a large corporation. In addition, in some circumstances, arbitration and other ADR processes may become as expensive as litigation or more so.

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See also

References
  1. Burton, J. (1990) Conflict: Resolution and Prevention. New York: St Martin's Press.
  2. "Thesis" (PDF).
  3. Global Business Environment (Fifth Edition) by FITT, pages 301, 302 & 303
  4. Lieberman, Jethro K.; Henry, James F. (21/1986). "Lessons from the Alternative Dispute Resolution Movement". The University of Chicago Law Review. 53 (2): 424. doi:10.2307/1599646. JSTOR 1599646. Check date values in: |date= (help)
  5. Lumineau, Fabrice; Oxley, Joanne E. (1 June 2011). "Let's Work It Out (or We'll See You in Court): Litigation and Private Dispute Resolution in Vertical Exchange Relationships". Organization Science. 23 (3): 820–834. doi:10.1287/orsc.1110.0658. ISSN 1047-7039.

Further reading
  • Sherwyn, David, Tracey, Bruce & Zev Eigen, "In Defense of Mandatory Arbitration of Employment Disputes: Saving the Baby, Tossing out the Bath Water, and Constructing a New Sink in the Process", 2 U. Pa. J. Lab. & Emp. L. 73 (1999)
  • Ury, William, 2000. The Third Side: Why We Fight and How We Can Stop. New York: Penguin Putnam. ISBN 0-14-029634-4

Alés, Javier y Mata, Juan Diego " manual práctico para mediadores: el misterio de la mediacion" éxito Atelier. Barcelona 2016

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