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Dispute resolution is often a multi-step process that can start with negotiation, move on to mediation, and, if necessary, end in arbitration or litigation. This progression allows parties to start off, quite naturally, with less-expensive, less-formal procedures before making bigger commitments of money and time. Still, there may be situations in which parties consider if it would be better to sue first, and then aim for a settlement, rather than starting with a more collegial process.

This article highlights three simple questions, the answers to which will be instructive to guide your decision on the most appropriate dispute resolution process to choose.

 “What are my goals?”

Begin by prioritizing your goals. Simply knowing what you want to get out of the process can help you decide where to start.

For example:

Mary wants to hash out a custody agreement with her husband as quickly and inexpensively as possible. Because she wants to make sure they both abide by the agreement, she wants them to decide the final outcome together.

It seems clear that, given Carla’s goals, mediation is the best choice for her dispute. Mediation is typically faster and cheaper than arbitration or litigation, and mediation also gives parties the greatest degree of control over the final outcome.

By contrast, Jack, who feels he is the victim of age discrimination by his former employer, has the primary goal of winning a large financial settlement. Thus, for him, it may be wise to start with arbitration. If he also wants to set a legal precedent that could benefit others in his situation, he might turn to litigation instead.

In both instances, parties would do well to listen closely to their Attorney’s assessment of their odds of winning the case and a large settlement.


“Which process will capitalize on the best features of the dispute?”

Every dispute has features that can help the parties reach a beneficial outcome. Identifying these features will enable the parties choose a process that will best trigger the strengths of the case?

Here are dispute features that lend well to mediation:

  1. A good relationship between parties and their Attorneys;
  2. Opportunities for creative problem solving;
  3. The willingness of one or both sides to apologize for any mistakes or wrongdoing;
  4. Eagerness to settle quickly; and
  5. Multiple issues that might lead to tradeoffs.

If your dispute has one or more of these characteristics, mediation may be the best choice for you.

By contrast, if formal protections, such as enforcement of key decisions are required to adequately secure the parties’ interest, and then arbitration or litigation might be a more suitable option.

“Which process will best overcome barriers to resolution?”

As you try to answer this final question, keep in mind that both sides to a dispute often prefer a settlement to an Arbitrator, Judge, or Jury’s binding, win-lose decision. Thus, it helps to focus on the ability of different dispute resolution methods to overcome barriers to settlement.

In particular, when parties are having trouble communicating and have a strong desire to air their feelings, mediation is often the best choice.

When more than two parties, such as grandparents or other relatives are involved in a custody dispute, mediation might also be optimal, as it allows multiple parties to get involved.

However, when parties have different opinions regarding the law affecting their case, the expertise of a Judge or Arbitrator may ultimately be needed.

In summary, the low-risk and relatively low-cost nature of mediation makes it the “go-to” dispute-resolution process. Mediation allows negotiators to work together toward maximizing their outcomes under the guidance of an expert, rather than handing over their dilemma to someone else to resolve on their behalf with no recourse to them. Mediation can also be a beneficial choice when negotiators need to work with each other in the future.

Notwithstanding the foregoing, there is no doubt that determining the best approach to dispute resolution may prove a daunting task. The key is when in doubt, mediate.

If a dispute is not resolved despite mediation, the parties still have the options of litigation or arbitration, but will explore these with a better understanding of their case and the issues at stake.

Do you find these questions helpful in determining your dispute resolution process?


Read more in The Handbook of Dispute Resolution (Jossey-Bass, 2005), Frank E. A. Sander and Lukasz Rozdeiczer

Excerpt from Program on Negotiation, Harvard Law School


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