The Quick Guide to Resolving Disputes
Dispute resolution is a proven and highly effective way of managing conflict and resolving disputes between different parties. Disputes resolution essentially give people an alternative to litigation and having their dispute decided by a Court. Disputes resolution invariably requires a trained neutral third party such as a lawyer or some other specialist.
Although there are numerous methods of alternative disputes resolutions , our guide will just cover the three main ones that are commonly used in New Zealand: negotiation, mediation and arbitration.
The simplest way for disputing parties to sort out issues is to negotiate a satisfactory solution themselves. Negotiation is a process of communication in which parties or their representatives work to reach agreement. This type of disputes resolution may not settle or resolve the dispute, but it is generally the first step taken toward achieving a resolution.
Mediation is a confidential and consensual dispute resolution process in which an independent and impartial mediator facilitates negotiation between the parties to assist them to resolve their dispute. Neither the parties nor the mediator are limited by rules of evidence.
The mediator is not a decision-maker, and the process is based on achieving co-operation between the parties. The mediator assists the parties to make their own decisions and agreements. The mediator’s role is to guide the process so that the issues can be defined, the relevant information produced and options explored without undue delay or legalistic procedures.
When a dispute is resolved in mediation, a written agreement which sets out the outcomes of the issues that have been resolved at the mediation is signed by the parties.
Facilitation is a process which is similar to mediation but is more flexible. A facilitator can assist parties to resolve a dispute by negotiation, consultation, information-gathering and problem-solving. A facilitator works with parties to assist in managing communication and potential conflict thereby preventing the escalation of conflict. A facilitator will not provide answers; rather a facilitator will ask questions, assist people to reach increased understanding and assist people to find answers for themselves and make decisions for themselves.
Arbitration is a process for the settlement of disputes in which an independent and impartial arbitrator makes a decision to settle a dispute after considering the representations of the parties. The arbitrator’s decision is called an “award” and is normally final and binding on the parties. The award is written and is enforceable by the courts. The Arbitration Act 1996 contains statutory provisions that govern the arbitration process.
Disputes resolution attempts to solve disputes in a proactive and more constructive approach and which generally does not happen with litigation. If successful, it can be far quicker and more cost effective than litigation. Parties can choose their dispute resolver and this person does not necessarily need to be a lawyer. It is a very confidential process and one which can ultimately resolve the issue before conflict escalates.
For further information on whether Disputes Resolution could be a way for you to settle a problem, please contact Gerard Praat at our Nelson Office.