There are five methods available to resolve these issues, and some of them can be used in combination with others. The five methods are:
Negotiation;
Mediation;
Collaborative Practice;
Arbitration; and,
Litigation.
Each of these five methods will be discussed in turn.
Negotiation: In traditional negotiations, the lawyers for the parties explore each other’s positions on the issues involved and attempt to reach a mutually acceptable solution that avoids a trial. The process generally involves identifying the issues, exchanging all information relevant to the issues, submitting positions on the issues and the reasons for taking those positions, and exchanging offers and counter-offers.
Mediation: This method involves the use of a third party to help the parties set the agenda for the discussion of the issues and to facilitate this discussion toward agreement. The parties, not the mediator, make the decisions on the issues and the final decision on whether or not they are resolved in a way acceptable for recording in a formal agreement. The mediator has no power to force the parties to agree, or to decided the issues if they cannot. The mediation may be conducted with or without lawyers for the parties being present during the sessions to assist with the mediation. There are two types of mediation; open and closed. Open mediation is “withprejudice”. This means that if the mediation is unsuccessful, whatever is said in the sessions can be used in subsequent litigation or other proceedings. Sometimes at the request of the parties, the mediator will prepare a report containing an assessment of the issues presented in the mediation and the recommendations of the mediator. The benefit of open mediation is that the work done is not lost if the parties fail to settle. The disadvantage is that the parties, knowing what they say may be used against them in some other proceeding, become more guarded in the information exchanged and more polarized in their claims. Closed Mediation means that whatever is said is “without prejudice”. All communication in the mediation and any position taken is confidential and cannot be raised again in any other context. The advantage is that the clients are more open in the exchange of information, are less positional and negotiate more freely. What may be seen as a disadvantage is that if they do not settle their differences, no report can be obtained from the mediator for use in court either by way of a written report or by calling the mediator to give evidence as a witness. If the mediation is successful, the mediator will prepare a summary of the issues and their resolution which the parties then take to their lawyers for independent legal advice and the preparation of an agreement.
Collaborative Practice: In a sense, collaborative practice is mediation without a mediator. Each party is represented by a lawyer specially trained in the process and the parties and the lawyers enter into a commitment not to litigate. Instead of a confrontation in a “me against you” approach the lawyers and the clients work together to attack the problem and not each other. It’s a problem-solving exercise, not a fight, with the lawyers each protecting the interests of his or her client while advancing toward a “win-win” outcome. During the process, the clients retain control over the agenda and the outcome with the lawyers providing legal protection, negotiation coaching, and conflict mediation. Modern methods of dispute resolution are used in place of traditional positional bargaining. The process builds on the parties’ willingness to settle and appeals to the individual’s higher self -- looking to the future and refusing to become embroiled in the faults of the past. Depending on the needs of the parties and their family, other professionals with training in the collaborative process may be involved. These include financial planners with a background in accounting, or family professionals acting as child specialists or divorce coaches, who come from the fields of social work psychology.
Arbitration: This method involves appointing a third party to decide certain issues in much the same way that a judge would. The arbitration process can range from a full hearing similar to a trial with the arbitrator making an award (like a judgment) at the end of the hearing, down to a process resembling mediation with the distinction that the arbitrator acting as a mediator is empowered to decide certain issues, if the parties do not agree (mediation/arbitration). The advantage is that the clients can select the individual they want as an arbitrator (as opposed to the court system where a judge is assigned without consultation with the parties). And generally, arbitration is more expedient than the court process and less expensive. The disadvantage of arbitration is that the decision-making powers are taken away from the parties and given to a third person.
Litigation: Litigation is the court process that ends in a trial, if the matter is not settled along the way. The parties have much less control over the process than they do in the other methods of dispute resolution. Unless agreement is reached, decisions are made by a judge based on the evidence presented. Resort to this method may be necessary where there is no trust between the parties and co-operation is not possible; or the parties are entrenched in extreme positions and unwilling to compromise; or there is a pathological relationship. Sometimes, even in less dramatic situations, it is necessary to take steps in a legal proceeding for temporary orders to obtain, say, a stable arrangement for the parenting of children or financial support, or simply to bring the other party to the negotiating table. Whatever the reason for starting a legal proceeding, the chances of it going all the way to trial are remote. With the encouragement of the court, at some stage the parties and their lawyers usually find enough common ground to resolve the matter on mutually acceptable terms without further court involvement.
