Home Dispute Resolution

Feed Display

The Australian | Business | Legal affairs
What is Dispute Resolution PDF Print E-mail

dispute n. An argument or quarrel.

resolution n. Something resolved or determined; decision.

From when humans first started interacting with each other, disputes have arisen and been resolved. Dispute Resolution is simply finding an answer to an argument or quarrel.

Dispute Resolution can be achieved through a variety of means. Most often negotiation between the quarrelling parties is the method of most effectiveness. At the other end of the scale actions by an independent third party, such as a court or other official body is the method employed. The most common means of Dispute Resolution are:

  • Negotiation between the parties
    A process whereby two or more parties seek to reach a consenual agreement. There may be no third party involvement, therefore the principals usually act for themselves or have their legal representatives act for them. There are usually no rules of procedure imposed on such a process.
  • Conciliation
    A process whereby a third party seeks to bring the disputants together to settle the dispute. The conciliator may not see the parties together and in fact, the process may, like negotiation,not be governed by any set of procedural rules. Often conciliation will not necessarily focus on settlement, rather it may focus on the sharing of information and identification of issues and options for settlement.
  • Mediation
    A process whereby an impartial third party brings the disputants together, with a view to settling the dispute by the use of options to satisfy the interests of the disputants. The process can be distinguished from negotiation in that the mediator takes an active role in preserving the process while the disputants take an active role in determining the outcome or settlement. It is also unique in its use of private caucusing with each disputant, and hence, in legal parlance, its non-compliance with the notion of natural justice. Read more about Mediation.
  • Adjudication
    A process whereby an independent third party is appointed to investigate a dispute, hear from each of the parties and then submits a binding resolution on the parties. Adjudication is becoming more common in industries such as the building and construction industry.
  • Expert Appraisal
    A process whereby the disputants agree on an expert who, after investigating and hearing from each of the disputants, will tender an appraisal. Disputants may choose, prior to agreeing on the expert, to be contractually bound by the appraisal.
  • Early Neutral Evaluation
    A process whereby the disputants are provided with an objective evaluation of the strengths and weaknesses of their respective cases. Usually a respected member of the legal profession will act as the evaluator and will also encourage settlement based on the objective evaluation of the matter.
  • Mini Trial
    A process whereby information is exchanged before a panel comprising representatives of the disputants who are authorised to reach a settlement- Usually there will be an impartial third party who, with the rest of the panel, will hear both sides of the dispute and chair a question and answer session with all the participants, after which the panel will seek to negotiate a settlement.
  • Arbitration
    A process whereby an impartial third party conducts an arbitration hearing, after which the arbitrator hands down an award, which is binding on the parties (although may be appealed on a point of law). Arbitration is governed in each state by uniform legislation (in NSW the Commercial Arbitration Act 1984). Arbitrations are usually governed by procedures similar to court whereby witnesses may be examined and cross-examined.
  • Litigation
    A process characterised by its adversarial nature, where evidence is presented to a tribunal of fact consisting of a judge or a jury who make a determination based on the evidence presented to it in court. Where a jury is involved, the judge will be responsible for ensuring that evidence is submitted to the jury according to taw, which usually means the tendering of facts according to the rules of evidence, whilst the jury are responsible for deciding the case according to the facts presented. Where a judge sits alone or with other judges, the judge or judges are responsible for the tendering of evidence according to the rules of evidence and consideration of a verdict based on the facts presented.

 Find more articles about dispute resolution in the Knowledge Base.



Sponsored Links