Dispute resolution
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- For Wikipedia's dispute resolution guidelines, see Wikipedia:Dispute resolution.
Dispute resolution is the process of resolving disputes between parties. Methods of dispute resolution include:
- lawsuits (litigation)
- arbitration
- mediation
- conciliation
- many types of negotiation
One could theoretically include violence as part of this spectrum, but dispute resolution practitioners do not usually do so; violence rarely ends disputes effectively, and indeed, often only escalates them. Some individuals, notably Joseph Stalin, have stated that all problems emanate from man, and absent man, no problems ensue. Hence, violence could theoretically end disputes, but alongside it, life.
Dispute resolution processes fall into two major types:
- Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome.
- Consensual processes, such as mediation, conciliation, or negotiation, in which the parties attempt to reach agreement.
Some use the term dispute resolution to refer only to alternative dispute resolution (ADR), that is, extrajudicial processes such as arbitration and mediation used to resolve conflict and potential conflict between and among individuals, business entities, governmental agencies, and (in the public international law context) states. ADR generally depends on agreement by the parties to use ADR processes, either before or after a dispute has arisen. ADR has experienced steadily increasing acceptance and utilization because of a perception of greater flexibility, costs below those of traditional litigation, and speedy resolution of disputes, among other perceived advantages. However, some have criticized these methods as taking away the right to seek redress of grievances in the courts, suggesting that extrajudicial dispute resolution may not offer the fairest way for parties not in an equal bargaining relationship, for example in a dispute between a consumer and a large corporation. In addition, in some circumstances, arbitration and other ADR processes may become as expensive as litigation or more so.
A competent and effective judge, arbitrator or mediator can greatly aid the proper functioning of the dispute resolution process. In civil law systems judges are jurists who are trained in investigation techniques, the process of determining the veracity of evidence and the inquisitorial system of adjudication. In the United States and other common law countries, judges are often experienced trial lawyers who have litigated many cases over many years before their appointment or election to the judiciary. Retired judges or experienced private lawyers often become arbitrators or mediators, but trained and qualified non-legal dispute resolution specialists form a growing body. In the United States of America, many states now have mediation or other ADR programs annexed to the courts, to facilitate settlement of lawsuits.
Dispute resolution can also take place on-line or by using technology in certain cases. Online Dispute Resolution, a growing field of dispute resolution, uses new technologies to solve disputes. It also involves the application of traditional dispute resolution methods to disputes which arise online.
Not all disputes, even those in which skilled intervention occurs, end in resolution. Such intractable disputes form a special area in dispute resolution studies.
Further reading
- Ury, William, 2000. The Third Side: Why We Fight and How We Can Stop . Penguin Putnam. New York. ISBN 0140296344