Dispute resolution

Dispute resolution is the process of resolving disputes between parties and includes lawsuits (litigation), arbitration, mediation, conciliation, and many types of negotiation.

Dispute resolution processes are of two major types:

  • Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome.
  • Consensual processes, such as mediation, conciliation, or negotiation, in which the parties attempt to reach agreement.

Some use the term dispute resolution to refer only to alternative dispute resolution (ADR), that is, extrajudicial processes such as arbitration and mediation used to resolve conflict and potential conflict between and among individuals, business entities, governmental agencies, and (in the public international law context) states. ADR is generally dependent on an agreement by the parties to use ADR processes, either before or after a dispute has arisen. ADR has experienced steadily increasing acceptance and utilization because of a perception of greater flexibility, costs below those of traditional litigation, and speedy resolution of disputes, among other perceived advantages. However, some have criticized these methods as taking away the right to seek redress of grievances in the courts, suggesting that extrajudicial dispute resolution may not be the fairest way for parties that are not in an equal bargaining relationship, e.g. a consumer and a large corporation. In addition, in some circumstances, arbitration and other ADR processes may be as expensive as litigation or more so.

A competent and effective judge, arbitrator or mediator is important to the proper functioning of the dispute resolution process. In civil law systems judges are jurists who are trained in investigation techniques, the process of determining the veracity of evidence and the inquisitorial system of adjudication. In the United States and other common law countries, judges are often experienced trial lawyers who have litigated many cases over many years before being appointed or elected to the judiciary. Arbitrators and mediators are often retired judges or experienced private lawyers. In the United States, many states now have mediation or other ADR programs annexed to the courts, to facilitate settlement of lawsuits.




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