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.