Effective Dispute Resolution
Disputes occur when there is a lack of coincidence between the parties and they are unable or unwilling to resolve their disagreement.
All disputes and the approaches for resolving them, feature on a continuum of interaction. At the far left of the continuum the dispute resolution approaches are open and peaceful and at the far right, adversarial. The continuum can be divided into three areas:
- Private resolution by the parties (with or without a facilitator) ranging from dispute avoidance through to mediation.
- Private third party determination (for example, governing body administrative decisions, expert determination or arbitration).
- Public third party determination (which may be judicial or legislative).
The overwhelming majority of disputes are resolved by some form of private resolution. Statistically very few disputes are determined publicly by a third party.
Many disputes are avoided (due to a lack of interest or resources) or there is a negotiated outcome. Negotiated outcomes occur with or without the assistance of a neutral facilitator. Whether one is needed can depend on a number of factors, including:
- The existence of emotional and communication barriers.
- The lack of a negotiation strategy or the adherence to an unhelpful strategy.
- Serious disagreements over the exchange of essential data, interests and values.
The use of neutral facilitators to assist in resolving disputes of all types is increasing.
The nature of the dispute must dictate the approach to use. The options for effective dispute resolution need to be tailored to each particular dispute and to the needs of the parties, not the other way around. To be effective, dispute resolution practitioners need a thorough understanding of all the available options and must have the practical skill-set needed to be able to assist their clients at every point on the dispute resolution continuum.
Other than when involved in a third party determination, dispute resolution is a collaborative and advisory process, not an adversarial one. Different skills are required from an advisor when he or she is facilitating a dispute, as opposed to presenting submissions or cross-examining in court.