Traditional v Alternative Dispute Resolution
In a more traditional approach (which people worry about) is that a person with a problem goes to a lawyer and the lawyer just takes a traditional approach. This involves some negotiations to begin with, usually letters backwards and forwards. And if that doesn’t narrow the matter down to where it can resolve, there’ll be court proceedings filed.
A more alternative approach keeps negotiations open for longer. Now, court may still be one of the elements used in an alternative approach because sometimes you need the leverage of proceedings on foot to bring a party to actually negotiate, because they might refuse to engage. Or the other reason might be that you have a timeframe that might be expiring and you need to actually get proceedings filed, but you might not actually use that as a dispute resolution process. It’s just potentially one of the strategies to get it resolved without going to court itself.
Now with an alternative approach to dispute resolution, we have a number of elements involved, with negotiation as the primary focus. You might do a number of things, and they might not be in any particular order, and you might come back to another process after a while. So self-service or self-negotiation is also an important part of negotiations so that you also understand the negotiation process.
Mediations are important – early stage mediation, preferably. A mediation might not just be a single day. It might be multiple half days over a length of time so that people have time to process and to do some research and find things out. Arbitration might also be a method that is included in the process, particularly if there is a technical point that needs to be resolved. So arbitration takes the matter out of the hands of the parties and gives it to an expert to decide on a particular point.
Collaborative Practice is also an important part of alternative dispute resolution. To be involved in collaborative practice, all the parties need to sign an agreement that they will do everything they can to try and keep the matter out of court, and the professionals in fact agree that they won’t go to court as well. So the lawyers you have involved in a collaborative practice, it incentivises them to resolve it because they cannot go to court. If you later have to go to court, they can’t act.
Alternative approaches try and keep the resolution and control of the outcome in your hands as much as possible.
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When and How to Open a Negotiation
If you are starting a negotiation, who should open first, and how you should open?
There is a myth that says that the person who opens in a negotiation is often disadvantaged. So, no one really wants to open.
This is a myth that is not necessarily true, and can actually work against you …
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The Benefits of ADR
There are many benefits of alternative dispute resolution, particularly for women.
There are a whole lot of biases built into the legal system that operate against women, so if we want a better result, maybe we don’t use the system itself.
Maybe we should look for an alternative. So there are lots of alternative dispute resolution methods, and most of them:
- allow you to have more control about what the outcome is,
- have more control of the timeline, and
- have more control over the cost.
The problem with litigation is that it might sound like the first stage is cheaper, but then it goes on and on and on. There are hidden costs and everything costs extra, with each stage getting more and more expensive.
With alternative dispute resolution, you general get a fixed fee and all extra costs are all built in.
The other thing about alternative dispute resolution is that it’s private. So when you put something into the court system, it becomes public. Courts are open systems. Justice is supposed to be available for everyone to go watch, and if a judgment is made, it is publicly available for everyone to have a look at, but not only that. Court files can be searched by anyone for a long time. They go into archives, and anyone can have a look back through what was filed.
Now, the other benefit of alternative dispute resolution is that you can look at what else is important to you. So when you’re doing alternative dispute resolution, you can have in mind that one of the main objectives is not for this relationship to completely break down. So you can preserve something of the relationship and potentially create a precedent of how to move forward, how to resolve conflict between yourselves in the future, rather than just having this stalemate and burning a bridge and letting a relationship go that would otherwise be important to you.
Whereas if you go through litigation, it often makes relationships worse. It’s very rare that people come through a court litigation and can still maintain a relationship after that.
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