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How are disputes resolved?

Most people think that the norm of resolving disputes is litigation. There are other methods of resolving disputes other than litigation referred to as ADR (Alternative Dispute Resolution).ADR encompasses all legally permitted processes of dispute resolution other than litigation. These processes and techniques act as a means of disagreeing parties to come to an agreement with or without the help of a third party. ADR includes negotiation, mediation, arbitration, conciliation and collaborative law. ADR is of two types; (i) resolving of disputes outside the official judicial mechanisms or (ii) informal methods attached to official judicial mechanisms.


Negotiation
Participation is voluntary and there is no third party who facilitates the resolution.

Arbitration
Participation is voluntary and there is a third party who imposes a resolution. Arbitration often occurs because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as “The Scott Avery Clause”.

Mediation
There is a third party, a mediator who facilitates the process but does not impose a resolution on the parties.

Conciliation
Parties to the dispute use a conciliator who meets them separately in an attempt to resolve their differences. This process has no legal standing and the conciliator usually has no authority to seek evidence or call witnesses, writes no decision and makes no award. The main goal is to conciliate the parties by seeking concessions. The parties seldom if ever actually face each other across a table in the presence of a conciliator.

Collaborative law
Each party has a lawyer who facilitates the resolution process within specifically contracted terms. The parties reach an agreement with the support of lawyers trained in the process and mutually agreed experts. It is a formal process that is part of the litigation and court system.

 

Other forms of ADR
Case valuation
This is a non- binding process in which the parties present their facts and issues to a neutral party ( evaluator) who advises the parties on the strengths and weaknesses of their dispute ; and asses how the dispute is likely to be decided by the court or judge.


Early neutral evaluation
This is a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement.


Neutral fact finding
This is a process where a neutral third party selected either by the disputing parties or court investigates an issue and reports or testifies in court. The process is useful for resolving complex, scientific and factual disputes.

Family group conference
Here a meeting between members of a family and of their extended related group is held. At this meeting ( often a series follow thereafter) the family learns skills for interaction and in making a plan to stop the ill treatment between members.