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Dispute Resolution Processes

Dispute resolution takes a number of different forms. Here are brief descriptions of the most common dispute resolution processes.

Arbitration

Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments.

Arbitration is different from mediation because the neutral arbitrator has the authority to make a decision about the dispute.

The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. Compared to traditional trials, arbitration can usually be completed more quickly and is less formal. For example, often the parties do not have to follow state or federal rules of evidence and, in some cases, the arbitrator is not required to apply the governing law.

After the hearing, the arbitrator issues an award. Some awards simply announce the decision (a "bare bones" award), and others give reasons (a "reasoned" award).

The arbitration process may be either binding or non-binding. When arbitration is binding, the decision is final, can be enforced by a court, and can only be appealed on very narrow grounds. When arbitration is non-binding, the arbitrator's award is advisory and can be final only if accepted by the parties.

Case Evaluation

Case evaluation is a non-binding process in which parties to a dispute present the facts and the issues to be determined to an experienced neutral case evaluator. The case evaluator advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator. The parties may then use this feedback to help reach a mutually agreeable resolution.

Collaborative Law

Collaborative Law of Collaborative Practice is an out-of-court settlement process where parties and their lawyers try to reach an agreement satisfying the needs of all parties and any children involved. The parties agree to provide all relevant information. If the parties engage in contested litigation, their Collaborative lawyers cannot represent them in court. The process typically involves “four-way meetings” with the parties and lawyers and possibly other professionals such as neutral financial specialists, communications coaches, child specialists, or appraisers.

Cooperative Practice

In Cooperative Practice, the parties and their lawyers begin the case with a common commitment of creatively settling all issues. They go to court only if they cannot reach a reasonable settlement. They use an agreement describing how the negotiation process will work. If the parties do not settle, the lawyers can continue to represent them. The process is very flexible and can be as formal or informal as desired. For example, the cooperative negotiation agreement may be oral or in writing. The process typically involves “four-way meetings” with the parties and lawyers, though some negotiation may be directly between the lawyers or parties when appropriate. The agreement may provide for a “cooling off” period before the parties could go to court (except in an emergency). If parties and lawyers have a hard time reaching agreement, they may hire a mediator to help resolve disagreements. The process may take place before a case is filed in court or while a court case is pending. In some places, the court may support the process.

Court-Appointed Neutral

The role of the court-appointed neutral (who is frequently, but not necessarily, an attorney) is to supervise those falling under the order of the court to make sure that the court order is being followed, and to report on the activities of the entity being supervised in a timely matter to the judge or the judge's designated representatives. Court-appointed neutrals often accompany peace officers in searches for documentary evidence in the possession of or under the control of attorneys, physicians, psychotherapists and clergy.

Divorce Coaching

Divorce coaching is a flexible, goal-oriented process designed to support, motivate, and guide people going through divorce to help them make the best possible decisions for their future, based on their particular interests, needs, and concerns. Divorce coaches have different professional backgrounds and are selected based on the specific needs of the clients. For example, some divorce coaches are financial planners, mental health professionals, lawyers, or mediators who have experience dealing with divorcing clients.

Early Neutral Evaluation

Early neutral evaluation is a process that may take place soon after a case has been filed in court. The case is referred to an expert, usually an attorney, who is asked to provide a balanced and unbiased evaluation of the dispute. The parties either submit written comments or meet in person with the expert. The expert identifies each side's strengths and weaknesses and provides an evaluation of the likely outcome of a trial. This evaluation can assist the parties in assessing their case and may propel them towards a settlement.

Facilitation

Facilitation is a process in which a trained individual assists a group of two or more people to discuss issues to be addressed by the group. This may include assistance in defining and analyzing issues, developing alternatives and executing the agreed upon solutions. A facilitator can help to enhance communication, consensus building and decision making among individuals in a variety of settings, including community, corporate, educational and family groups.

Family Group Conference

Family Group Conference is a meeting between members of a family and members of their extended kinship group. At this meeting, the family becomes involved in making a plan to stop the abuse or other ill-treatment between its members. Family Group Conferencing involves family and friends in resolving the abuse rather than leaving the decision-making entirely in the hands of the legal authorities and service providers. All participants are given a great deal of preparation, support and protection so that all family members can be both safe and informed in having a say in the decision-making.

Litigation

Litigation is a process for handling disputes in the court system. Litigation is a contested action, where someone else, such as a judge may make the final decisions for the parties unless the parties settle before trial. Settlement can happen at any point during the process. During the litigation process, there may be a series of hearings and temporary orders (e.g. temporary custody and support), culminating in the final orders. Final orders regarding the real issues in the case (e.g. custody, support, division of assets) are usually entered only after there has been a trial with witnesses.

Mediation

Mediation is a private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute. The parties have the opportunity to describe the issues, discuss their interests, understandings, and feelings; provide each other with information and explore ideas for the resolution of the dispute. While courts can mandate that certain cases go to mediation, the process remains "voluntary" in that the parties are not required to come to agreement. The mediator does not have the power to make a decision for the parties, but can help the parties find a resolution that is mutually acceptable. The only people who can resolve the dispute in mediation are the parties themselves. There are a number of different ways that a mediation can proceed. Most mediations start with the parties together in a joint session. The mediator will describe how the process works, will explain the mediator’s role and will help establish ground rules and an agenda for the session. Generally, parties then make opening statements. Some mediators conduct the entire process in a joint session. However, other mediators will move to separate sessions, shuttling back and forth between the parties. If the parties reach an agreement, the mediator may help reduce the agreement to a written contract, which may be enforceable in court.

Mini-Trial

A mini-trial is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a trial. The presentations are observed by a neutral advisor and by representatives (usually high-level business executives) from each side who have authority to settle the dispute. At the end of the presentations, the representatives attempt to settle the dispute. If the representatives fail to settle the dispute, the neutral advisor, at the request of the parties, may serve as a mediator or may issue a non-binding opinion as to the likely outcome in court.

Multi-Door Program

The name "Multi-Door" comes from the multi-door courthouse concept, which envisions one courthouse with multiple dispute resolution doors or programs. Cases are referred through the appropriate door for resolution. The goals of a multi-door approach are to provide citizens with easy access to justice, reduce delay, and provide links to related services, making more options available through which disputes can be resolved.

Negotiation

Negotiation is a voluntary and usually informal process in which parties identify issues of concern, explore options for the resolution of the issues, and search for a mutually acceptable agreement to resolve the issues raised. The disputing parties may be represented by attorneys in negotiation. Negotiation is different from mediation in that there is no neutral individual to assist the parties negotiate.

Neutral Fact-Finding

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

Ombuds

"Ombuds are found in a wide variety of programs worldwide, including programs that advocate on behalf of a designated constituency, those that follow the traditional public model of ombuds with an investigative function, and those within public or private organizations that often operate according to an organizational charter and recognized standards of practice, rather than a legislative or government mandate.

The ombuds function has emerged as a valuable form of alternative dispute resolution that addresses a wide range of issues which might not otherwise be heard or addressed due to the limitations of litigation, formal processes or fear of retaliation. Ombuds essentially stand for procedural justice, fundamental fairness, accountability and equity and act as an important component of a comprehensive conflict management system.

Parenting Coordination

Parenting Coordination is used in cases where parents have a lot of conflict about their parenting arrangements and have difficulty resolving their conflicts themselves. The parenting coordinator (PC) is either appointed by a court or hired privately by parents to work out problems in implementing a parenting plan. The goal of the process is to reduce conflict between parents that harms their children.

Pro Tem Trial

Pro Tem trials are similar to other civil trials, but the parties choose their own trial date and the court appoints an attorney to serve as a temporary (Pro Tem) judge for the trial. The pro tem judge has all the same powers of a regular judge, and will make a decision based on the evidence and arguments presented during the trial. Each side in a pro tem trial must follow the same rules and legal procedures as parties who have a trial in the courthouse. There is no option for a jury trial. The parties must provide their own court reporter. Depending on court rules, the decision of the Pro Tem judge may be appealable in the public courts.

Private Judging

Private judging is a process where the disputing parties agree to retain a neutral person as a private judge. The private judge, who is often a former judge with expertise in the area of the dispute, hears the case and makes a decision in a manner similar to a judge. Depending on court rules, the decision of the private judge may be appealable in the public courts.

Settlement Conferences

A settlement conference is a meeting in which a judge or magistrate assigned to the case presides over the process. The purpose of the settlement conference is to try to settle a case before the hearing or trial. Settlement conferencing is similar to mediation in that a third party neutral assists the parties in exploring settlement options. Settlement conferences are different from mediation in that settlement conferences are usually shorter and typically have fewer roles for participation of the parties or for consideration of non-legal interests.

Summary Jury Trial

In summary jury trials, attorneys for each party make abbreviated case presentations to a mock six member jury (drawn from a pool of real jurors), the party representatives and a presiding judge or magistrate. The mock jury renders an advisory verdict. The verdict is frequently helpful in getting a settlement, particularly where one of the parties has an unrealistic assessment of their case.

Unbundled Legal Services

When lawyers provide “unbundled” legal services, the clients hire them to perform a specific task or represent them for only a limited process or issue of the matter instead of the entire legal matter. There is no standard unbundled process because lawyers perform many different tasks and clients have different needs. Some specific tasks that clients may hire lawyers to perform include (but are not limited to): evaluating the client's analysis of a case, advising about legal rights and responsibilities, advising about court procedures, advising about other dispute resolution options, suggesting documents to be prepared, reviewing documents, drafting documents, conducting factual investigations, giving references to appropriate experts, performing legal research, evaluating settlement options, planning for negotiations, providing standby telephone assistance during negotiations, planning for court appearances, appearing in court for a limited purpose, and assisting with an appeal.