Resolving a Dispute
Other forms of dispute resolution
Negotiation involves “conferring with another with a view to agreement”. There are no formal rules to governing how negotiations should be conducted, although there are culturally acceptable approaches. Negotiation is much more than persuasion. Although you can try to persuade a difficult person to see it your way, you are merely discussing or arguing your way through a problem unless you can vary the terms and commit resources.
Here the parties are assisted in their negotiations by a third party who coaches or represents them in the negotiations without a formalised structure. Lawyers, accountants, trusted friends or other technical or professional advisers are often called upon to fulfil this role.
Case presentation or mini-trial
This is where in-house representatives present brief summaries of the parties’ cases to senior executives of both parties with authority to settle the dispute, in a structured information exchange. The senior executives then negotiate a solution, taking into account the information presented to them. Sometimes an independent third party will chair the presentation.
Independent expert appraisal or early neutral evaluation
This is where the parties appoint an independent expert to investigate and provide an opinion on the issues in dispute, either as a basis for solution or simply to clarify the issues. In some cases, the parties agree to be bound by the opinion, which is often submitted to them in draft form before being finalised. The process may then become a type of mediation on the draft opinion, putting responsibility for a solution back into the hands of the parties.
This is the system in which the courts impose a binding decision on the parties. It is formal, with strict rules of evidence, and adversarial. The legal framing, analysis and argument, together with the adversarial nature of the process, means that the system has little scope for reconciling or accommodating the parties' interests. It also produces 'winners and losers'.