Leading Dispute Resolution Processes

by Jim Melamed
November 2008
Here are brief descriptions of the most common dispute resolution processes:

Mediation

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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 an enforceable written agreement.

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Arbitration

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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.

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Collaborative Practice

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Collaborative Practice, including Collaborative Law and interdisciplinary Collaborative Divorce, is a new way for you to resolve disputes respectfully -- without going to court -- while working with trained professionals who are important to a variety of areas of your life. Legal counsel pre-commit to seek to resolve the matter through collaborative negotiation and that, if litigation might come to be necessary, that would need to be with other attorneys. Complementary professionals, including coaches, financial advisers and others may be involved in a collaborative team effort.

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Facilitation

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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.

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Parenting Coordination

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Parent coordination is a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract.

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