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How do you make non-litigation work for you?
Creative dispute resolution requires cooperation
Notwithstanding the multiple benefits in time, cost, flexibility, party control and participation, non-litigation resolution processes can be obstructed and rendered unsuccessful by an uncooperative party or attorney. This is a well-recognized problem in court-annexed procedures which, because of due process rights, almost always allow for trial de novo should either of the parties he unwilling to accept the result of the dispute resolution procedure. Even in voluntary processes, some disputants will use the process merely as a discovery strategy with little intent to settle.
Selecting and designing the processes
To gain maximum benefit from creative dispute resolution, it is important to match the dispute to the process most appropriate for its resolution. Factors important to selecting the process include:
- Whether the process should be binding or nonbinding
- The amount of money being disputed and the need for a quick resolution
- The level of sophistication of the counsel and parties,
- The financial resources of the disputants
- The nature of the dispute
- The balance of power between the parties
- Whether a party is pro per
Questions to Consider When Selecting a Neutral and pursuing a process
If the proposed neutral is a lawyer or judge, what experience does the neutral have as a neutral?
Have any of the proposed neutrals had prior dealings with the parties, the attorneys or others pertinent to the dispute?
Does the neutral use the facilitative or evaluative approach and is he or she able to adjust if requested by the parties?
Also before selecting a mediator, the parties need to make a reasonably structured assessment of the dispute. This includes:
- Reviewing each party’s objectives for the dispute resolution process.
- Identifying the potential barriers to settlement.
- Matching the parties’ objectives and the barriers to settlement with the appropriate attributes of the mediator.
- Deciding whether the neutral will consult with the parties on process design.
- Determining what experience and recommendations the neutral has in process design.
- Establish the expected duration for the dispute resolution and why.
- Set guidelines as to when the dispute resolution process should be completed.
- Confirm, if needed, that both the time requirements and the neutral’s calendar will allow for additional sessions.
Convening Process
Though it is possible for all the above to be structured by the dispute participants themselves or their attorneys, even early "structuring" can often be facilitated through the use of a third party mediator. Not only will the mediator be neutral in the "convening process", but he or she will likely be more familiar with what options may best suit the nature and objectives of any dispute than would be the participants or their attorneys.
Since no dispute can be resolved until there is first a gathering over which an exchange of issues and positions be shared without adversarial reactions, engaging a mediator to orchestrate this crucial phase of the process is often a very wise step to take.
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