The Finer Points Of Dispute Resolution
dispute resolution is a process of resolving conflict between two people or two groups of people wherein litigation or a lawsuit is only one possible resource. There are several methods used in dispute resolution, and going into court or filing a suit is supposed to be your last resort. Other methods should be pursued by lawyers before filing a lawsuit, such methods include arbitration, collaborative law, mediation, conciliation, negotiation and facilitation.
Dispute Resolution within Justice System
Going through an adjudicative process will mean that a judge or jury or even an arbitrator will ultimately determine the outcome of a dispute. Their word is final and enforced in order to resolve a dispute. Many cases that go through the justice system is sent to an arbiter is sent to an arbiter rather than a judge such as petitions for bankruptcy and labor disputes depending on the laws within your state or country. It is unlikely that all cases are sent before a judge because of the risk of clogging the courts with too many cases. Many less pressing cases are first sent to an arbiter to be settle out of court. If the case escalates, and an arbiter is unable to settle the dispute then it is forwarded to a judge or jury.
Collaborative Dispute Resolution
The collaborative process refers to mediation, collaborative law, conciliation or negotiation to help facilitate parties reach an agreement where in their interests are fairly met. What is fair is to be determined by the parties involved and will take the negotiation of a give and take process. A lawyer can facilitate a collaborative dispute resolution but any other respected individual can be called on to facilitate the process. Ideally that person will be impartial and will have the interest of both parties in mind. It is also very important that the facilitator be a good communicator, to be trusted by both parties. Within a rural village in many parts of the world, the village elder is usually the facilitator for collaborative dispute resolution.
Collaborative Law in Family Law
A lawyer that enters family law knows that most of her cases will be settle out of court through collaborative law. Many families would rather negotiate the terms of their separation and the division of their properties and custody of their children outside the courts. This is because the decision of the courts are often unpredictable and permanent, while family matters usually fall upon a gray area. Matters of the heart, while messy, may not withstand the harsh ruling of a court. This is especially true where the custody of children is involved. Couples going through a divorce seek the help of lawyers to help facilitate the separation of their properties and fairly schedule the custody of children in a way that is most acceptable to all involved, and sometimes even including the wishes of the children. In the practice of family law, lawyers act more as mediators rather than how we would traditionally view the role of lawyers.