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 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
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, 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 →
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
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.