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RESOLVING DISPUTES OUTSIDE OF COURT

Dispute resolution (a term used often along with conflict resolution and alternative dispute resolution), is a range of means for reducing or altogether removing conflict. A formal definition for conflict is the actual or perceived opposition of needs, values and interests. Actually, conflict resolution in the above sense generally includes the processes of negotiation, mediation and diplomacy. Mediation along with arbitration are often associated with the processes of alternative dispute resolution.

Arbitration is an effort to end disputes without going to the courts by refering the matters in dispute to one or more persons who are known as the arbitrators, arbiters or even arbitration tribunal. The disputing parties agree beforehand that they agree to be bound by the decision or the award of the arbitrators. In this settlement process, a third party deliberates on the issues and imposes a decision that is legally binding for both sides. It is, however, quite in order to regard arbitration as a form of binding dispute resolution, similar to fighting in the courts, and altogether different from the other forms of dispute resolution, like mediation or negotiation, or determinations by experts, the awards from whom are usually non-binding. Commercial disputes are mostly resolved by arbitration, more so when the transactions are international in nature. However, arbitration gives rise to bitter controversies in consumer and employment matters because in some instances it is not a voluntary choice by both sides to the dispute. In such instances, arbitration is imposed on unsuspecting consumers or employees through fine-print contracts, denying them their right to go to a court.

Conciliation is another alternative dispute resolution mechanism, when the parties to a dispute consent to use the services of a conciliator. The conciliator holds separate meetings with the parties so as to reach a common ground. He/she attempts to reduce tensions, improve communication and interpret issues. If needed, he/she provides technical assistance and explores potential solutions, bringing about in this manner a negotiated settlement. The trouble with conciliation is, unlike arbitration, it has no legal basis. The conciliator does not look for evidence or ask witnesses to appear before him/her. His main purpose is to conciliate, most of the time by seeking concessions. The disputants during conciliation very rarely face each other across the table in the presence of the conciliator. The conciliator does not generally give a written award.

Another form of alternative dispute resolution is called Mediation; also sometimes referred to as appropriate dispute resolution. The purpose of mediation is to determine the conditions of any settlements reached instead of agreeing unconditionally to something imposed by a third party. Usually, mediation is called for when the disputes involve (as the opposing parties) organizations, communities, municipalities, states, etc… even individuals or other representatives with a vested interest in the outcome. From an academic point of view, mediation consists of a process of thought of reconciling mutually interdependent and opposing terms of subjective versus objective interpretation or understanding. The most important thing in mediation is that the parties should agree that the mediator is impartial and neutral. Normally, mediators begin by trying to open the dialogue between the parties and then broaden it to help the disputants to reach some kind of agreement with tangible and visible results relating to the matters in dispute. Mediators have been found to be quite effective in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters, for example, something like sibling disputes when it comes to parental will or other matters (see https://frankmwilsonpc.com/what-happens-when-your-sibling-disputes-your-parents-will/ for more information). In an industrial/employment dispute, a third-party could be requested to mediate between employees and management. For instance, if workers that belong to a union strike as a consequence of a dispute, the company could go to a mediator for intervention so as to bring about a settlement between the union and the company.

Yet another form of alternative dispute resolution, Negotiation, is the first thing the parties involved may start amongst themselves in order to end the clash. It can be regarded as a chat to resolve disputes, to make an agreement upon courses of action, to haggle for individual or group advantages, or to create conditions acceptable to diverse interests. It is a way of communication between at least two parties, and is carried out in business, non-profit organizations, government departments, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life. There are professionals quite specialized in this art and craft, like union negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators. There are also people who negotiate often in the course of their work, such as brokers, diplomats and parliamentarians. Current research has indicated that successful negotiators frequently use a technique to their advantage. They ask the opposing parties to prepare a list of things they wish to get from the negotiations (a kind of wish list), and number the items in the order of one to whatever. Then they go back and forth requesting the parties to relinquish one item at a time, starting with the least desired one. It is quite likely that one list is very different from the other, and with different priorities. This helps the negotiator to start with a modest success, and, more importantly build up a kind of trust between the parties. Consequently, even if there is no agreement, the parties shed quite a lot of their issues that they have with each other.

Lastly, when everything fails, there is litigationor filing a lawsuit in court, an altogether different process from each of the above. The lawyers at Levy Zavet PC are extremely capable and professional in acting as mediators, conciliators and negotiators. Our broad knowledge base allows us to participate in a variety of areas and subject matters often in dispute. Call the lawyers at Levy Zavet PC to discuss your alternatives to dispute resolution and how we can help!

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