Traditional dispute resolution processes such as suing over a conflict are failing to meet today's needs.
Litigation costs are soaring out of control, the courts are overcrowded making the process take longer and longer which fuels the anger felt by disputants.
Relationships are destroyed and disputants are frustrated with attorneys, managers, employees, union leaders, business associates, ex-spouses, current spouses, and everyone else engaged in conflict who are too busy posturing for the best position or attending to procedural issues to actually resolve the dispute.
Many people have questioned the adversarial system we have to resolve conflict.
Rather than resolve conflicts quickly and fairly, the adversarial process turns to intrusive and expensive litigation that disputants become frustrated with due to not understanding the process and not having any control over their own situation.
There are better dispute resolution strategies that provide disputants with better ways to resolve their conflicts in many situations.
Not all mind you, there are times where litigation is necessary.
Litigation does have advantages in certain cases.
However, many conflicts in litigation could be resolved more quickly and fairly through creative dispute resolution strategies that are non-litigative.
The most commonly known alternative dispute resolution processes are generally negotiation, mediation, and arbitration.
These have grown in acceptance and have blended into different variations.
Such variations include early neutral evaluation, summary jury trial, minitrial, judicially hosted settlement conferences, judicial arbitration, and temporary judging.
You might want to define creative dispute resolution as anything you can do to stay out of court.
This might be through better communication strategies to structured settlement strategies that involve neutrals or other sophisticated procedures.
I believe mediation is one of the most effective processes for dispute resolution.
In a nutshell, mediation is negotiation facilitated by a third-party who assists the parties in moving to resolution.
One of the greatest advantages of non-litigative dispute resolution is flexibility.
When you litigate, you must follow the rules.
With alternative dispute resolution strategies you are free to be flexible and the boundaries you must stay within are much broader.
During mediation, what the parties agree to is binding, regardless as to what the law might decide if the matter went to trial.
I have mediated quite a few landlord/tenant matters.
The facts of a case might be that if it goes to trial the court will evict the tenant and order the tenant to pay the landlord a certain sum.
This would be based on the law.
However, there is nothing preventing the landlord and tenant during the mediation to get creative and work out a deal.
The agreement the parties inter into is only limited by the parties' imagination and willingness to accept the agreement.
Courts can provide a limited range or remedies.
During mediation the parties can explore options that my meet their interests in different ways than the court can such as recognition or apologies.
Therefore, one of the best reasons to mediate is the flexibility the process provides.
We all know that most cases settle and do not go to trial.
Numbers range around 95% as to cases that settle.
So, if most cases are going to settle anyway, why not settle them as early as possible? Resolving disputes creatively and early can save both time and money.
Mediation allows the parties to control the process and outcome of the dispute.
The disputants have the option of choosing a mediator rather than being stuck with the judge or jury they wind up getting.
Mediation also provides an opportunity for more informal communication between the parties rather than the adversarial and sometimes hostile communications often associated with formal litigation.
This control and informality can reduce frustration at the process and often provides for solutions that disputants "buy into" more readily, therefore they are more apt to follow through with the agreed upon resolution.
Mediation also provides for confidentiality and often an avenue to preserve future relationships between the disputants.
Many parties prefer the privacy of mediation as opposed to litigation which is public.
When reputation or trade secrets are involved, the confidential nature of mediation can be much preferred.
In mediation research, it is shown that agreements reached through mediation are generally more lasting than litigated judgments because the resolution is usually created by the parties.
More importantly, these early mediation agreements may prevent the hostilities and antipathy often generated by litigation.
The preservation of relationships is extremely important in certain situations.
So why should those in conflict look toward mediation? It is a negotiation facilitated by a third-party who assists the parties in moving to resolution.
Mediation saves time and money.
It is a more flexible process than going to court and provides the disputants more control over the process and outcome.
It provides confidentiality and an avenue to preserve future relationships between the parties.
Mediation is not the only way, but it is often the better way to resolve disputes.