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What is non-litigation dispute resolution?
Non-litigation dispute resolution is: “whatever you can do to stay out of court”. In other words, if the process conceived and utilized avoids the time, expense and anxiety of the court system it qualifies as non-litigation resolution.
Nevertheless, there are three primary categories for achieving non-litigation solutions:
1. Negotiations
2. Mediations
3. Arbitrations
Negotiations are intended to be the “self help” approach to reaching a dispute resolution that either avoids or cuts short doing battle in court. Unfortunately, unless the negotiators have been trained in the process and are willing to work “from the same side of the table” to attack the problem rather than each other, it is still often an adversarial process. It also involves a degree of distrust as the parties are, understandably, reluctant to share true numbers and evaluations regarding the strengths and weaknesses of their case.
Mediations are, in their simplest form, facilitated negotiations. A mediator has no decision making authority and, thus, is not a threat to either side of a dispute. This encourages the parties to openly discuss their position and objectives confidentially with the mediator (meaning it is never disclosed, without permission, to the other side) - for the purpose of seeking, without risk, a possible middle ground or creative solution.
Through the process of receiving information and having the opportunity to probe into the parties’ financial and non-financial concerns in a dispute, a mediator can serve as a filter, an evaluator, a prioritizer, a sounding board and an architect of creativity to guide the parties in finding a mutually acceptable solution.
Arbitration is a softened adversarial process (similar to court) which ultimately produces a decision to conclude the dispute, using less restrictive discovery and evidentiary rules than the court system. Typically, it is structured and scheduled according to the requirements of the participants and involves a decision maker who is more readily accessible to the participants than a court room judge.
None of the non-litigation processes for dispute resolutions, however, are exclusionary in their form and function. As discussed elsewhere in this material, each of the processes can be customized and overlapped in almost unlimited ways to help the parties achieve a solution - without litigation - to their dispute. The range of structure is limited only by the disputants’ imaginations. Yet, whatever the form, the objective is to save time, expense and anxiety.
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