Dispute resolutions
When two parties have a disagreement, it can be difficult to come to a resolution. However, dispute resolution methods like arbitration and mediation can help.
What are the most common methods of resolving a dispute?
-
Litigation.
-
Arbitration.
-
Mediation.
Mediation
Commercial mediation is where a neutral third party settles a dispute between two opposing individuals or businesses.
No, there is no legal obligation to follow the outcome of a mediation.
No, it is not the job of the mediator to judge. They are there to facilitate a conversation between opposing parties to help them come to an agreement.
No, a party is free to reject an invitation to mediate. Any party can even walk away from a mediation during the process.
In other forms of dispute resolution such as arbitration and litigation, the judge will rule entirely in favour of one party. In mediation, both parties can come away with a ‘win’. This allows the parties to have a possible future again together without ties completely being cut. This is usually not possible with other forms of dispute resolution.
Yes this is possible.
Apart from the mediator, at least one member from each party and their solicitor will attend.
The key is to strike a balance between comfort and professionalism. Pants that are too snug or tops that are too low-cut should be avoided. You want to look like you’re making an effort, but you also don’t want to be uncomfortable for the duration of the mediation – which can last a few hours. A few well-chosen pieces can make all the difference. For instance, opting for a tailored blazer instead of your usual cardigan can make you look more pulled together, even if you’re just wearing jeans beneath it. Or consider swapping out your old T-shirt for a crisp button-down shirt. Small changes like these can go a long way in helping you look (and feel) your best for what is going to be a draining session.
The words you use can either build rapport or create distance. For example, using someone’s first name right away creates closeness, whereas using terms like “the other side” creates distance. By using warm and friendly language, you’ll help build a sense of trust and cooperation.
You might be bickering, but you’re still communicating with another human being (even if you’re not in the same room). Just as you would avoid using offensive language in person, you should also avoid it when you’re communicating online. By using positive and respectful language, you’ll help to create a more pleasant and productive environment for everyone involved in the call. Additionally, using friendly language will also help to build rapport and trust between you and the other people on the call and helps everyone get closer to a mutually beneficial resolution.
Listen Actively at a Mediation
Active listening is a communication technique that is used to encourage respect, understanding, and collaboration. It involves listening carefully to what the other person is saying, asking questions for clarification, and then repeating back what you have heard. When done correctly, active listening can help to build trust, resolve conflict. There are three steps that can help you to become an active listener:
1) Pay attention – give the person your full attention and focus on what they are saying. Avoid distractions such as your phone or other people in the room.
2) Listen for understanding – try to understand the message the person is trying to communicate. If you’re not sure, ask clarifying questions.
3) Respond effectively – once you have understood the message, respond in a way that shows you have listened and empathize with the person. For example, you could say something like “I can see how that would be frustrating.”
How does mediation work?
- Stage one: Mediator’s opening statement
- Stage two: Disputant’s opening statements
- Stage three: Joint discussion
- Stage four: Private caucuses
- Stage five: Joint negotiation
- Stage six: Closure
After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation and encourages each side to work co-operatively towards a settlement.
Each party is invited to describe the dispute and its consequences, financial and otherwise. The mediator might entertain general ideas about resolution as well. While one person is speaking, the other is not allowed to interrupt.
The mediator might encourage the parties to respond directly to the opening statements, depending on the participant’s receptivity, in an attempt to further define the issues.
The private caucus is a chance for each party to meet privately with the mediator. Each side will be placed in a separate room. The mediator will go between the two rooms to discuss the strengths and weaknesses of each position and to exchange offers. The mediator continues the exchange as needed during the time allowed. These private meetings comprise the guts of mediation.
After caucuses, the mediator might bring the parties back together to negotiate directly, but this is unusual. The mediator usually doesn’t bring the parties back together until a settlement is reached or the time allotted for the mediation ends.
The parties reach an agreement, the mediator will likely put its main provisions in writing and ask each side to sign the written summary of the agreement. If the parties didn’t reach an agreement the mediator will help the parties determine whether it would be fruitful to meet again later or continue negotiations by phone.
Arbitration
When mediation is not effective, opposing parties may turn to arbitration. Arbitration is another way to settle a dispute without going to the court.
The outcome of an arbitration is legally binding. To get it changed, you will have to go to court.
An arbitrator will listen to both sides of the argument, along with supporting evidence. In order to come to a conclusion, the arbitrator may meet you and the party you are in dispute with to gather as much information as possible before a decision is made.
Approximately 45 days. It usually depends on the timetable and deadlines you and the other party agrees with the arbitrator.
Litigation
When mediation and arbitration do not work, the Court will hear the dispute. This is litigation.
A rule in civil litigation which dictates that both parties must present their cases on a balance of probabilities.
It means, in order to stand a chance of winning your case, you must prove your argument at a high probability i.e. your argument must prove that there is a greater than 50 per cent chance that what you said happened.
The steps involved in litigation
- Step one: Pre action protocol
- Step two: Pleading
- Step three: Case Management Conference
- Step four: Disclosure
- Step five: Witness statements
- Step six: Expert evidence
- Step seven: Pre-trial review
- Step eight: Trial and verdict
Opposing parties try and settle their differences outside court. This is by exchanging the information they have and discussing it. At the very least, this stage may resolve some aspects of the dispute but not all of it. This makes better use of their time and money and the Courts time.
This is where the claimant summons the defendant to Court. The claimant, via a claim form, will outline why they are claiming, the compensation they want out o the claim and why the claim is worth taking to Court and why it deserves to go through a legal process (of litigation).
The defendant must respond with the claim within 14 days. In their response, they must state whether they are defending the claim or not. They can also argue against the claim being heard in court.
The Court will set out a timetable for the case and let each party know what is required of them and when. At this point, each party is still pushed towards agreeing as much as they can to avoid formal litigation procedures. If they agree or agree on enough grounds, the Court may decide that a hearing is not required and instead issue a written record that stipulates what was agreed.
Each party presents their evidence to support their argument. Evidence has to be documentary in nature i.e. anything on paper or an electronic device.
Witnesses are called to explain the dispute and fill any gaps in information at the disclosure stage.
Sometimes, in order to make a judgement, the Court may require expert evidence. This is where an expert in a particular field gives their opinion. It is also possible to get two experts with opposing opinions.
Here, the Court makes sure all parties have followed the timetable from step three. One more attempt will be made to settle the dispute before the trial. If this is not possible, the timetable and date for the main trial is set.
The trial takes place, where both parties present their evidence, via Barristers and a judgement is eventually made.