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Understanding Dispute Resolution

The following questions are covered on this page. You can reach the question you would like to review by clicking on it in the list below.

  • What do the terms "ADR" and "DR" mean?
  • What do "binding" and "non-binding" mean?
  • What is a "party" or a "stakeholder"?
  • What does "neutral" mean?
  • What do the following terms mean?
  • About confidentiality?
  • Organizational DR services

What do the terms "ADR" and "DR" mean?

The term Alternative Dispute Resolution (ADR) is an term used to describe methods or techniques for assisting people with disputes which do not include trials in state or federal courts. Many of these techniques have been used throughout history. Some of them have recently become institutionalized in response to the growing number of cases on our courts' dockets. In response, people have sought more efficient and cost effective ways to resolve their disputes. The methods that are described below include fact-finding, facilitation, mediation, arbitration, med/arb, early neutral evaluation, settlement weeks, settlement conferences, and mini-trials. Not all of these processes are specifically listed in the database in which you can search for a neutral. Instead, the most common processes used are included in the database. To find someone providing some of the less common processes, you should look in the note sections for the neutrals in the database.

This site uses the term "DR" instead of "ADR" because parties may attempt to resolve their disputes using a blend of processes, including court trials, and all these methods should be considered by parties to a dispute.

What do "binding" and "non-binding" mean?

To understand the variations in the processes that are described below, it is useful to understand what is meant by "binding or "non-binding."

"Binding" means that the neutral who is assisting the parties will make a decision about what action they should take to resolve their dispute, and the parties must follow the neutral's direction. By its nature, arbitration is usually binding (see Arbitration, below), and any binding arbitration is enforceable in a court of law, without any right of appeal (subject to certain exceptions that the law allows). These exceptions produce fewer appeals of arbitrations than for court trials.

"Non-binding" means that the parties are not legally required to follow the direction of the neutral. Mediation is by definition non-binding (see Mediation, below).

The chart below shows, generally, the degree to which the various DR processes are binding:

Least Binding, Most Confidential                 Most Binding, Least Confidential
Negotiation Facilitation Mediation Settlement Conference Early Neutral Evaluation Fact- Finding Mini- trial Med/Arb or Arb/Med Arbitration Court Trials*

Generally, the dispute resolution methods toward the left of the chart above (Negotiation, Facilitation) are non-binding and controlled by the parties, than other methods. Likewise, the processes toward the right end of the chart above (arbitration, litigation) generally are binding and not controlled by the parties, but managed in accordance with standardized rules and governing bodies. Court trials are rarely confidential. Generally, the processes to the left of "Court Trials" can be made confidential by the parties (see Confidentiality, below).

What is a "party" or a "stakeholder"?

In litigation, a "party" is either a plaintiff - the person who is bringing the suit - or a defendant - the person being sued. Sometimes, additional people or organizations are added to a suit, as parties, because they have an interest in the outcome. In this site, "party" means a primary person or organization with a dispute with another person or organization.

"Stakeholder" means someone who is not necessarily a party to the dispute, but who has an interest that may be affected positively or negatively by the outcome of the dispute. Where "stakeholder" is used in this site, it includes parties, unless the text specifically states otherwise.

As an example, in a dispute about payments on a loan, between a bank which holds the mortgage on a commercial property, and a business operating on that property, the bank and the business are the parties. However, members of the surrounding neighborhood, including other businesses and residents, and the city, and county, are likely stakeholders - they will be affected by whether the bank forecloses and the building is occupied. In litigation, the parties would be the only participants. In mediation or some other consensual DR process, the stakeholders could be included in discussions about how to resolve the loan dispute. Another stakeholder might have a creative solution - for instance, maybe another business in the community would buy the building and lease it to the business, avoiding foreclosure and putting people out of work.

What does "neutral" mean?

"Neutral" means that the person assisting the parties with their dispute will take a balanced perspective on their claims and arguments. It also means that the "neutral" person will not have a personal interest in the outcome of the dispute, or a prior relationship or dealing with a party that might create an impression of bias, which is referred to as a "conflict of interest." See the page on "Choosing a Neutral." In mediation, the neutral is called a mediator, in arbitration he or she is called an arbitrator, and in a trial, the neutral is the judge, and if there is a jury, the jury members serve as neutrals.

What do the following terms mean?

Negotiation

"Negotiation" refers to when people or organizations who disagree about a matter choose to discuss and mutually agree upon how to resolve it.

Facilitation

"Facilitation" refers to when a person intervenes to assist people in negotiating solutions. Facilitators also help lead meetings or planning sessions for organizations, with the goal being that all stakeholders are heard from and the most creative and best solutions are generated by the group of stakeholders. Where "Facilitation" is referred to in this site, it is considered a discipline separate from mediation, even though mediators have a number of facilitation skills they use. To find out more about facilitators, you may want to visit the website for the International Association of Facilitators.

Partnering

"Partnering" is a structured process used often in the construction or defense industries. In partnering, all the contractors and subcontractors meet before the project starts to build team approaches to the project, and design dispute resolution mechanisms that will help bring the project in on time, and within budget, while meeting quality requirements, and decreasing the likelihood of claims.

Mediation

Definition. In mediation, a neutral and impartial third party, who is called the "mediator" facilitates communication between negotiating parties. The goal is to assist the parties in resolving their dispute on their own terms. Mediation is an appropriate method to use when parties wish to preserve their on-going relationships or terminate an existing relationship in the least adversarial and most cooperative way. Solutions arrived at in mediation tend to last over time because the people affected by the decisions are the ones making them. Because the parties are responsible for making their own decisions, mediation may not be appropriate if a party is unable to negotiate due to substance abuse, psychological impairment, physical or emotional abuse by the other party, or ignorance. Mediation is an efficient and cost effective method of resolution for both simple and complex cases. When lawsuits are mediated, the effectiveness of the mediation may depend on what stage the lawsuit is in, i.e. just after the complaint and answer have been filed, or after discovery, or after a summary judgment motion has been ruled on.

Evaluative v. facilitative v. transformative. Some mediators are "evaluative" mediators, which means that they will give an opinion to the parties about how they think the dispute should be resolved, or what might happen if they went to court. Other mediators are "facilitative," which means that they do not give their opinion about what should happen, but work to help the parties in developing their own solutions, no matter what might happen in court. Some mediators will be evaluative if you request them to be, even though they are usually facilitative. In this site's database, it indicates whether and under what circumstances mediators are evaluative or facilitative. "Transformative" mediators are facilitative, but take their process one step further: they look to improve the relationship of the parties, and their attitudes about resolving disputes, to avoid future problems.

Co-mediation. In certain kinds of cases - usually those with complex technical aspects like environmental cases, or ones with many stakeholders - two mediators may work together. This is called "co-mediation." Not all mediators are experienced in this method or willing to co-mediate. The database indicates if mediators will co-mediate.

Special technical knowledge. In some cases, the parties may prefer a mediator with no special knowledge of the subject. Benefits of this approach include avoiding a mediator's preconceived notion of what a settlement should look like and letting the parties come up with unique or creative alternatives.

In other cases, for example where the subject of the dispute is highly technical or complex, such as an environmental dispute, a mediator who comes to the table with some substantive knowledge may help the parties focus on the key issues in the dispute. Or, parties may want someone who understands a cultural issue or other context of the dispute.

Settlement conference

In a settlement conference, a neutral legal professional hears both sides of the case and conducts an informal assessment and negotiation session and may advise the parties on the law and precedent relating to the dispute and suggest a settlement. By design, settlement conferences occur in cases filed in court.

Settlement conferences are recommended for cases in which the disputants have strongly held positions about the probable case outcomes, but will listen to a competent third party's view of their positions and possible trial results. Settlement conferences can help parties analyze the issues in dispute, review the facts, and evaluate the positions in their case. The opinion received can and often does facilitate settlement of the dispute before trial. Settlement conferences may be used for simple and complex cases.

Early neutral evaluation

In early neutral evaluation (ENE), an evaluator is appointed by the court or chosen by the parties to intervene in a lawsuit for the purpose of narrowing the issues, assisting in case planning and management, and assisting in settlement, if appropriate.

The primary purpose of early neutral evaluation is to obtain case control and management. This may be accomplished by developing a discovery plan, narrowing issues, or eliminating unnecessary parties. A secondary purpose is to assist with case settlement. The evaluation session is typically held within 60 days after the case is filed, or even sooner. Early neutral evaluation is used primarily for large, complex cases that can benefit from focused case management.

Some courts appoint neutrals who provide a blend of the settlement conference and ENE.

Fact-finding

When a neutral performs fact-finding, he or she examines the issues and facts in a case and may or may not recommend settlement procedures. The neutral may actively investigate facts in the case, by interviewing witnesses, examining documents, or viewing important scenes or tangible evidence.

Neutral fact-finding is useful in complex, technical cases. The parties may agree to this process or a court may order it. It is often used in conjunction with other DR processes such as mediation and arbitration. Organizations sometimes use fact-finding to inform managers prior to their taking actions on claims such as sexual or racial harassment.

Mini-trial

In a mini-trial, a group of people determines the outcome of a dispute. The group usually is made up of an official with settlement authority from each party and a neutral. In this sense, it is like an arbitration conducted by a panel, except that each party sends one of its own executives, rather than choosing an outside arbitrator, and only the third person, the neutral, is not related to a party. The panel listens to the evidence. Then, it conducts settlement negotiations, with the neutral working to assist the representatives from each party in settling the dispute.

In a mini-trial, a group of people determines the outcome of a dispute. The group usually is made up of an official with settlement authority from each party and a neutral. In this sense, it is like an arbitration conducted by a panel, except that each party sends one of its own executives, rather than choosing an outside arbitrator, and only the third person, the neutral, is not related to a party. The panel listens to the evidence. Then, it conducts settlement negotiations, with the neutral working to assist the representatives from each party in settling the dispute.

Med/arb and arb/med

These are two common blended processes.

In med/arb, the parties enter into a mediation, then, if they do not completely settle the dispute, an arbitration commences to resolve the aspects of the dispute that were not settled. The arbitration may be conducted by the mediator or by a different person. Some organizations, such as the American Arbitration Association, will not allow the mediator to serve as the arbitrator in the same dispute. This can be arranged by parties when they engage their neutral and anyone providing this service should be able to explain the pros and cons of using the same person.

In arb/med, the parties conduct an arbitration in their dispute. The arbitrator or panel of arbitrators seals the ruling on the case, and the parties then enter into mediation to settle the dispute. If the parties fail to come to agreement in mediation, after a set period of time, or if the mediator declares an impasse, the sealed ruling is opened, and the parties proceed as if no mediation had occurred, and there had only been an arbitration. The same concerns about having one person serve as both mediator and arbitrator occur here as in med/arb, and should be discussed with the neutral.

These processes should only be considered when a negotiated settlement is desired, but when a quick settlement or decision is needed.

Arbitration

In arbitration, one or more neutral and impartial expert third parties hear and consider the evidence and testimony provided by the disputants and issue a binding or non-binding decision. The parties must decide ahead of time if the decision is to be binding.

Arbitration can be beneficial in that it is private and results in a speedy decision rendered by arbitrators who have extensive experience and expertise in the area of the dispute. Its disadvantages include the parties' limited right to court review, limited discovery, and unavailability of punitive damages. Arbitration, however, can be efficient and cost effective. The parties may choose to have one arbitrator or a panel or arbitrators, based on an original document that provided for arbitration (contract or benefit plan document), or rules they determine at the time of the dispute. Generally, arbitrations allow evidence and rulings not available in a court of law, but arbitrators also may not be required to follow legal precedent. These factors are seen as advantages or disadvantages, depending on which party they favor. Some of these aspects of arbitration can be controlled, based on the rules the parties set for the arbitration.

Trials

Disputes are also determined in state and federal courts. If the case doesn't settle after being filed at court (perhaps using one of the methods above), and goes to trial, it may be tried in front of a jury or only a judge, depending on the type of case, and the preferences of the parties to the suit. Much has been written about the efficacy of filing lawsuits, and conducting trials, and no attempt is made in this site to give an opinion on those writings. Parties often choose court trials where major undecided legal issues are at stake, or where a party wants to set a precedent. Parties occasionally represent themselves in lawsuits ("pro se" representation), but are usually represented by lawyers. If you are considering filing suit, you are advised to seek the advice of an attorney licensed to practice in your jurisdiction. The remainder of this site pertains primarily to DR processes other than trials.

A word about Settlement Weeks

Some courts, in order to assist parties in settling their cases, have established Settlement Weeks. During these weeks, which usually occur once or twice a year, the court will suspend hearings, except for required hearings such as those in criminal matters, and make the courthouse available for parties to meet with neutrals who will help them settle their cases. These neutrals usually function as mediators. Cases are scheduled back-to-back, and the mediators, mostly volunteers, meet with a series of parties. Settlement Weeks have been particularly effective for cases with smaller dollar amounts at stake.

Some courts, in order to assist parties in settling their cases, have established Settlement Weeks. During these weeks, which usually occur once or twice a year, the court will suspend hearings, except for required hearings such as those in criminal matters, and make the courthouse available for parties to meet with neutrals who will help them settle their cases. These neutrals usually function as mediators. Cases are scheduled back-to-back, and the mediators, mostly volunteers, meet with a series of parties. Settlement Weeks have been particularly effective for cases with smaller dollar amounts at stake.

Many creative solutions have come from blending the DR processes above. For instance, the parties may negotiate the issue of liability in a matter, but need a mediator or arbitrator to determine damages. Or, other blends may be used. This is limited only by the creativity of the parties and the nature of the dispute.

About confidentiality

Generally, Dispute resolutions processes other than court trials are more confidential than trials. In certain circumstances, though, it may be possible to require that a party, stakeholder, witness, or neutral in a mediation or arbitration testify in a later proceeding regarding some aspect of the prior DR process. This is rare, and can be controlled by effective use of governing statutes and court rules, and agreements regarding confidentiality and privilege. For certain kinds of disputes, particularly labor matters, the results of arbitrations are available in periodicals, but the testimony and other evidence would still be confidential. Parties should discuss with their neutral the methods that neutral knows of to protect their proceedings.

In Ohio, there are confidentiality statutes, which you can link to by clicking below:

  • The mediation confidentiality statute - ORC Sec. 2317.023; and the family mediation confidentiality provision in Ohio statutes - ORC Sec. 2317.02(H); and 
  • There are also local court rules regarding confidentiality in state and federal courts, which govern cases referred from those courts to DR.

Organizational DR services

There are also dispute resolution services that are used by organizations. These include ombuds services, consultation and systems design, and training. In the Directory, which you can search at this site (go to Search for a Neutral), you can look for people who provide these services.

Ombuds

Some organizations, usually universities or hospitals, have an office of the "ombuds" which provides dispute resolution services to people connected with that organization. An ombudsperson will use a variety of dispute resolution techniques, typically fact-finding, mediation, and facilitation. The ombudsperson also usually reports to the senior executive for the organization. The function of the ombuds is to facilitate resolution of disputes within the organization, and when possible to build into the organization processes which will reduce the number of disputes over time. For more information about ombuds, you may want to visit the site of the ombuds association. Ombuds may occasionally be outside contractors who have a part-time or full-time contract to provide these services to the organization. Occasional assistance with individual disputes is not included in the definition of ombuds services in this site.

Consultation/systems design

Sometimes organizations find it beneficial to engage a consultant to design processes for resolving disputes. An example would be a complaint process for employees. Not all neutrals who provide dispute resolution services also design systems for organizations. Therefore, you'll find in the Directory that you can search specifically for a neutral who provides "consultation/systems design services." The exact kind of systems that they are able to design will depend upon their expertise.

Training

You may also find it useful to find a neutral who can train people in your organization in dispute resolution skills. Usually, this training is in the area of mediation or facilitation skills. There are also experts who can assist you in training to manage workplace conflict, or school conflict. You can also search for people who provide training in the Directory.

Editors note

The material above is based in large part on material in ________________, originally published in ___, by the Colorado Council of Mediators and Mediation Organizations and the Colorado State Bar Association, whose permission is gratefully acknowledged.

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