Is Your Attorney Focused on Conflict or On Resolution?
July 1, 2015
There is so much benefit to engaging in non-litigation dispute resolution. An increasing number of companies agree to engage in non-litigation dispute regulation, either because it makes sense or because they are contractually obligated to do so. One of the benefits of non-litigation dispute resolution is that there are more solution options. Courts are generally only able to look backwards in time at events that occurred in the past and then offer one of a handful of resolution options. With non-litigation dispute resolution, you can decide on any resolution possible. For example, with a dangerous product dispute (product liability), a family may simply want assurances that a design will be changed so that others are not injured and this is not a resolution a court can offer.
Foremost, it is important to recognize that your dispute resolution attorney should not, and often contractually cannot, be your litigation attorney. Litigation and non-litigation attorneys generally posses very different skills to solve disputes, although some folks have mastered both arts. Most litigators are not trained to find a collaborative solution and are trained to use the judicial process as a means of resolution. Conversely, non-judicial dispute mediation looks for the best reasonable solution and is free to use any process or solution. Also, it is important that all parties feel free to engage in the dispute resolution process freely and confidentially and knowing that opposing counsel can never interrogate you in a courtroom allows participants to discuss the problems more openly.
The steps in a non-litigation dispute resolution proceeding probably will look something like the following, depending on the nature of the dispute:
Identifying the Interests and Goals.
This means identifying all the interests and goals rather than the ones courts may consider.
Gathering Necessary Information.
This is generally much less expensive and formal than in litigation. Also, with the interests and goals identified in the first step, the collection process is much more focused.
This step requires all the options be identified, even if they are not feasible or reasonable. This is both cathartic for the individuals and helpful for the resolution process.
Discussing the pros and cons of each resolution option.
Issues like practicality, cost, and even feelings are contemplated for each option identified.
Negotiating the details of the best resolution.
This is the step that gets down to nitty-gritty and can even get contentious again. It is helpful that the parties have experienced the previous steps and can reflect on those steps when negotiations become difficult.