May 28th, 2018

What questions should you ask about dispute resolution?

Dispute resolution may begin with a negotiation, move into mediation and could eventually require arbitration or litigation. Generally, most negotiations move smoothly and do not need to escalate to the other levels. In other situations, the parties may move to one of the other levels immediately. The less expensive and the least time-consuming approach is the negotiation without having to escalate to one of the other levels.

To determine what might be best for you at any given time you should consider several questions.

What are your goals?

Define the problem. What do you want? Think about this in terms of time, money, relationships, environmental impact, and any other interests. What you like to have happen? Do you want collaboration? Do you want to work together? Do you want to try and understand the other party’s concerns?

Mediation is typically faster and cheaper than arbitration or litigation and the parties determine the final outcome. If that can work for you, give this serious consideration.

On the other hand, if the parties have a real legal disagreement and want someone to make a final determination then arbitration or litigation may be appropriate.

In some instances, parties enter into mediation at the same time as arbitration or litigation in parallel paths with the hope that the differences may be addressed in mediation, but if not the arbitration or litigation option is a fall back position.  This is often recommended by the Harvard Law School Program on Negotiation.

It is important to listen carefully to the experts and attorneys associated with the dispute to consider the alternatives, the impacts (economically and socially) and to evaluate the impacts to make an appropriate decision. You may want to start off with mediation since it is less expensive.  It is safe.   It can be non-binding or it can be made binding through a legal document. It allows both parties to share their perspective of the facts, their feelings and their interests regarding each issue.

Which process has attributes that are most beneficial to this dispute?

If the parties are willing to work with each other, apologize if appropriate and open to listening to each other, mediation may be the most appropriate choice if the parties were unable to negotiate a solution on their own. This may also be most effective for those interested in a solution sooner and when there are multiple issues that may lend themselves to tradeoffs.

By comparison if there are complicated legal issues with entrenched parties that really want a legal solution with each party believing they are right, then litigation or arbitration may be appropriate. My only caution with respect to this approach is to stand back and ensure that those counseling you are not simply fueling the fire of righteous indignation to ensure the payment of fees in the future.

Which process offers the greatest probability of success?

Most parties prefer to be part of the decision-making process rather than have someone else make the decision for them (trier of fact, judge, jury, arbitrator). This tends to encourage mediation. Considering mediation, arbitration or litigation each has constraints to consider. When multiple parties are involved with multiple interests then mediation tends to be favored. If there are long term relationships at issue mediation may be beneficial by allowing both short term and long-term interests to be explored by the parties.

Communication is key. If the relationship is such that communicating peacefully between the parties is an issue then arbitration or litigation tend to me more favored.

If it is not clear that arbitration or litigation are favored serious consideration should be given for mediation. Why? It is least expensive. It may offer a resolution faster. It has very little risk. When working with a skilled mediator with a background in your area there can be real value added by an expert.

In the event that mediation did not work, it may still prove helpful by having explored interests and having a better understanding of the facts of the case and the issues from both sides perspective.

Contact Mike Gregory to speak to your group or consult with you. Check out his website, books and helpful content in the About section of his web page. Michael Gregory, NSA, ASA, CVA, MBA and a Qualified Mediator with the Minnesota Supreme Court, is an international speaker that helps others resolve conflict, negotiate winning solutions and inspire leaders. Mike services clients business to IRS, business to business and within businesses. Mike may be contacted directly at mg@mikegreg.com or at (651) 633-5311.

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