Dispute resolution
Encyclopedia
Dispute resolution is the process of resolving disputes between parties
.
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. Some individuals, notably Joseph Stalin
, have stated that all problems emanate from man, and absent man, no problems ensue. Hence, violence could theoretically end disputes, but alongside it, life.
Dispute resolution processes fall into two major types:
Not all disputes, even those in which skilled intervention occurs, end in resolution. Such intractable disputes form a special area in dispute resolution studies.
Dispute Resolution in International Trade:Negotiation, Mediation, Arbitration and Legal Action
For Details refer to "Global Business Environment" (Fifth Edition) By FITT
Pages 301,302 & 303
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.
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 ADR. In the United States of America, many states now have mediation or other ADR programs annexed to the courts, to facilitate settlement of lawsuits.
(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 court
s, 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.
, a growing field of dispute resolution, uses new technologies to solve disputes. Online Dispute Resolution is also called "ODR". Online Dispute Resolution or ODR also involves the application of traditional dispute resolution methods to disputes which arise online.
Educational programs:
Party (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
.
Methods
Methods of dispute resolution include:- lawsuitLawsuitA lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
s (litigation) - arbitrationArbitrationArbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
- collaborative lawCollaborative lawCollaborative law is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both...
- mediationMediationMediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
- conciliationConciliationConciliation is an alternative dispute resolution process whereby the parties to a dispute agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences...
- many types of negotiationNegotiationNegotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcomes to satisfy...
- facilitation
One could theoretically include violence
Violence
Violence is the use of physical force to apply a state to others contrary to their wishes. violence, while often a stand-alone issue, is often the culmination of other kinds of conflict, e.g...
or even war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
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. Some individuals, notably Joseph Stalin
Joseph Stalin
Joseph Vissarionovich Stalin was the Premier of the Soviet Union from 6 May 1941 to 5 March 1953. He was among the Bolshevik revolutionaries who brought about the October Revolution and had held the position of first General Secretary of the Communist Party of the Soviet Union's Central Committee...
, have stated that all problems emanate from man, and absent man, no problems ensue. Hence, violence could theoretically end disputes, but alongside it, life.
Dispute resolution processes fall into two major types:
- AdjudicativeAdjudicationAdjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved....
processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome. - 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.
Dispute Resolution in International Trade:Negotiation, Mediation, Arbitration and Legal Action
For Details refer to "Global Business Environment" (Fifth Edition) By FITT
Pages 301,302 & 303
Judicial dispute resolution
The legal system provides a necessary structure for the resolution of many disputes. However, some disputants will not reach agreement through a collaborative processes. 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, 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
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
and/or jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
, 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.
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 ADR. In the United States of America, 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 resolutionAlternative dispute resolution
Alternative Dispute Resolution includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation...
(ADR), that is, extrajudicial processes such as arbitration, collaborative law, and mediation used to resolve conflict and potential conflict between and among individuals, business
Business
A business is an organization engaged in the trade of goods, services, or both to consumers. Businesses are predominant in capitalist economies, where most of them are privately owned and administered to earn profit to increase the wealth of their owners. Businesses may also be not-for-profit...
entities, governmental agencies, and (in the public international law context) states
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
. 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 court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s, 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
Consumer
Consumer is a broad label for any individuals or households that use goods generated within the economy. The concept of a consumer occurs in different contexts, so that the usage and significance of the term may vary.-Economics and marketing:...
and a large corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
. In addition, in some circumstances, arbitration and other ADR processes may become as expensive as litigation or more so.
Online dispute resolution
Dispute resolution can also take place on-line or by using technology in certain cases. Online dispute resolutionOnline Dispute Resolution
Online dispute resolution is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent...
, a growing field of dispute resolution, uses new technologies to solve disputes. Online Dispute Resolution is also called "ODR". Online Dispute Resolution or ODR also involves the application of traditional dispute resolution methods to disputes which arise online.
See also
- Alternative dispute resolutionAlternative dispute resolutionAlternative Dispute Resolution includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation...
- Collaborative divorce
- Collaborative lawCollaborative lawCollaborative law is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both...
- Conflict resolutionConflict resolutionConflict resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending of some social conflict. Often, committed group members attempt to resolve group conflicts by actively communicating information about their conflicting motives or ideologies to the rest...
- Conflict resolution researchConflict resolution researchConflict resolution is any reduction in the severity of a conflict. It may involve conflict management, in which the parties continue the conflict but adopt less extreme tactics; settlement, in which they reach agreement on enough issues that the conflict stops; or removal of the underlying causes...
- Creative PeacebuildingCreative PeacebuildingCreative Peacebuilding is the larger name for creative therapies used to create peace, within individuals, groups, and societies. These therapies are used with many different demographic groups and in various types of situations...
- DiplomacyDiplomacyDiplomacy is the art and practice of conducting negotiations between representatives of groups or states...
- Party-directed mediation
- PeacekeepingPeacekeepingPeacekeeping is an activity that aims to create the conditions for lasting peace. It is distinguished from both peacebuilding and peacemaking....
- Restorative justiceRestorative justiceRestorative justice is an approach to justice that focuses on the needs of victims, offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender...
- National Arbitration ForumNational Arbitration ForumThe National Arbitration Forum , founded in 1986, provides arbitration and mediation services to businesses, based at its Minneapolis, Minnesota headquarters and offices in New Jersey. The company is one of the United States's largest and most controversial dispute resolution companies...
Educational programs:
- Geneva Master in International Dispute Settlement (MIDS)
Further reading
- Morris, Catherine, ed. Conflict Transformation and Peacebuilding: A Selected Bibliography. Victoria, Canada: Peacemakers Trust.
- 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. Penguin Putnam. New York. ISBN 0-14-029634-4
External links
- New York State Dispute Resolution Association Resources for dispute resolution practitioners and consumers.
- City University of New York Dispute Resolution Consortium (CUNY DRC)
- Peacemakers Trust offers extensive resources in the field of dispute resolution.
- Straus Institute for Dispute Resolution at Pepperdine University School of Law
- Peacemakers Trust
- National Conflict Resolution Center (NCRC)
- National Mediation Training Registry