Conflict can be very draining: mentally, financially and spiritually. The longer it goes on, the higher the price paid by everyone involved. When a conflict does emerge, there are a number of ways to respond. Your choice can, and often does, impact the length, intensity and severity of the conflict.
Dispute resolution options can be understood on a basic continuum, ranked according to your engagement in the problem, the involvement of third parties and the power of resolution given to those third parties. Most people have access to the following options:
Most people are uncomfortable with conflict. It can make you feel frustrated, powerless and overwhelmed. As a result, the first response to conflict is often avoidance. Whether you feel that you lack the power or resources to invoke a change, or more simply that your life is too full to take it on, most people avoid directly addressing it for at least a short time.
When avoidance is no longer practical, most people faced with a conflict will pursue some form of informal negotiation. Most often, disagreements are either resolved or abandoned at this stage.
If informal negotiation fails, you may find yourself at a crossroad. You have at your disposal a variety of formal and informal options, ranging from court action to vigilantism. On the one extreme, you have the option of resolving your conflict using the court system. This process is valuable but can be prohibitively expensive and time consuming. On the other hand, taking the law into your own hands is unwise and the results are always unpredictable. Thankfully, there are dispute resolution options that can give you more control over the outcome of your problem.
Mediation as a process has a record as old as civilization itself. Historically, people in conflict looked to others in the community, usually elders, to help them develop creative solutions. These intermediaries, whether or not they proposed settlements, helped the parties to the conflict to speak their minds and develop a resolution. In this age old model, it was up to the disputants to actively implement and carry out the solutions to their problems. This tradition of mediation continues today.
Today, the term “mediation” refers to a method of communication, specifically one including the involvement of at least two interested parties and a neutral facilitator. While mediations can be held over the phone or through correspondence, the most effective mediations occur when all interested parties engage one another face-to-face with the assistance of an expert in communication and negotiation → a mediator.
The mediator can then begin a process wherein people are given an opportunity to:
- Be heard;
- Listen, often for the first time, to the other party’s understanding of the conflict;
- Identify the issues to be resolved;
- Explore options for resolution;
- Test the pros and cons of other dispute resolution options;
- Create solutions unique to their needs and goals;
- Preserve relationships; and
- Learn new ways to approach and resolve conflicts.
The mediator’s objective is to assist with communication and negotiation. The parties to the conflict may actually agree on many of the facts and consequences of the dispute. It is the role of the mediator to isolate the set of agreed facts, help the parties identify the issues in dispute and help them begin work on settlement options.
The mediation process offers several critical advantages. One of the most attractive aspects of mediation is the confidentiality of the process. Parties to a mediation process must pledge to keep all information divulged during the sessions in the strictest of confidence. This allows all participants to feel comfortable sharing information that may be central to reaching a meaningful and durable solution.
Another important aspect of mediation is affordability. Mediation can lead to the resolution of most conflicts in one or two business days of work, leading to a great reduction total cost.
A third advantage is control over the outcome of the conflict. As a party to the process, you choose:
- Priority of agenda items;
- What information is considered admissible or relevant;
- Terms of settlement;
- What “amends” will solve the problem (money, future actions, future trade, an apology, etc);
- How the solution should be implemented.
Arbitration is a term that describes a process combining a mediation-like structure with a guaranteed resolution. Ideally, the parties engage in a facilitated negotiation and if they fail to come to an agreed settlement, the arbitrator is empowered to make the final decision for them. The disputants agree in advance whether the decision will be binding or non-binding.
Arbitration is suitable for disputes where confidentiality, finality and speed are the most important factors. Arbitrators are often experts in the subject matter being disputed, need minimal preparation time and can usually help resolve matters in a couple of weeks.
There are serious disadvantages however. Arbitrators rule “in the shadow of the law” and therefore, will often make decisions in relation to the law. Accordingly, critics say this process too closely resembles litigation. In addition, arbitration decisions are typically not subject to appeal nor are they publicized. They cannot, therefore, form the basis of common law precedent or be reviewed by the judiciary. This private forum offers very little protection from abuse of process. Nevertheless, arbitration can be a very attractive option for parties in conflict who need an expeditious resolution to a difficult problem.
Litigation offers satisfactions that other forms of conflict resolution usually cannot match, including:
- Public vindication
Unfortunately, however, in Ontario, all matters brought before the courts have cost consequences. If you lose, up may end up paying as much as 50-90% of the others party(s) legal fees. In many jurisdictions more than 98% of cases settle before the trial date, but often after ten of thousands of dollars have been spent on legal fees.
There are conflicts that should be brought through a civil trial. In cases where a piece of legislation is being tested, where groundbreaking issues are being addressed and a great many people stand to potentially benefit from a finding of wrong and right, litigation may be the right answer.