Dispute prevention, control and resolution can take many different forms. Because of the innate flexibility, adaptability and versatility of the ADR concept, a wide variety of processes have been developed, and new processes are continually being invented, so that they can meet the needs of parties or a particular dispute. To paraphrase the famous words of Professor Frank Sander, “you can design the fix to fit the fuss.”
It is becoming increasingly common to combine a series of dispute prevention, control and resolution processes into a “system” or series of “steps” that are designed to deal with different kinds of disputes that might occur, or different stages in the development of a dispute.
Dispute prevention, control and resolution processes can be grouped for convenience of understanding the possible steps involved into four broad categories:
- Prevention and cooperation techniques that help to avoid problems and disputes.
- Negotiation, problem-solving and “real-time” early resolution techniques that control and de-escalate disputes at an early stage
- Nonbinding dispute resolution techniques that help parties to resolve disputes consensually
- Binding dispute resolution processes and court-annexed processes to achieve final resolution of disputes, or “loop” them back to consensual processes.
Commonly Used Dispute Prevention, Control and Resolution Processes within Each Category
- Prevention and cooperation techniques that help to avoid problems and disputes
- Realistic Allocation of Risks
- Providing Incentives to Encourage Cooperation
- Analysis of Potential Sources of Disputes
- Negotiation, problem-solving and “real-time” early resolution techniques that control and de-escalate disputes at an early-stage.
- Step Negotiations/Issue Elevation
- Standing Neutrals and Dispute Review Boards
- Non-binding dispute resolution techniques that help parties to resolve disputes consensually
- Case evaluation
- Expert Advisory Opinion
- Med-Arb (Mediation, then (if necessary) Arbitration
- MEDALOA (Mediation, then (if necessary) Last-Offer Arbitration)
- Summary Advisory Arbitration
- Summary Jury Trial
- Family-related processes:
- Family Group Conference
- Parenting Coordination
- Binding dispute resolution processes and court-annexed processes to achieve final resolution of disputes, or “loop” them back to consensual processes
- “Baseball” or Final Offer Arbitration
- Arb-Med (Arbitration, then Mediation)
- Private Judging
- Court-Annexed Processes:
- Early Neutral Evaluation
- Multi-Door Program
- Neutral Fact-Finding
- Special Master
- Pro Tem Trial
- Settlement Conference
Prevention and cooperation techniques that help to avoid problems and disputes.
Realistic Allocation of Risks
Realistic allocation of risks is the practice of balancing the obligations of parties to a relationship by assigning each risk to the party who is best able to manage, control or insure against the risk. If a party to a relationship is saddled with a risk that it cannot handle, this creates resentment and adversarial relationships and sows the seeds of countless potential disputes. Therefore, many problems can be avoided by following this practice.
Providing Incentives to Encourage Cooperation
The practice of providing incentives to encourage cooperation among parties to a relationship helps to prevent disputes from arising. If a party to a relationship has a financial incentive to act cooperatively it is more likely to work in a collaborative way. An example of such an incentive is a “bonus pool” which will be divided among all the participants in a business venture provided they all meet certain defined goals of cooperation and teamwork. The bonus is payable either to everyone or to no one, thus encouraging the participants to support and assist each other by focusing on legitimate joint goals, and subordinating selfish interests for the ultimate benefit of all participants.
Analysis of Potential Sources of Disputes
A joint effort by parties who are about to enter into a relationship to identify likely sources of potential disputes can motivate the parties to develop ways of preventing and controlling disputes. The process involves investigating the kinds of disputes that have been shown to arise typically in similar relationships, analyzing the prospective relationship to identify sources of disputes, and considering ways in which to prevent and control those potential disputes.
Partnering is a team-building effort in which the parties, with the assistance of an expert facilitator, commit to achieve mutual goals and objectives and resolve potential problems by establishing cooperative working relationships. It is customarily implemented at the beginning of the relationship by holding a retreat among the key stakeholders in the relationship, establishing a “partnering charter,” and periodically renewing the partnering effort with further refresher retreats.
Negotiation, problem-solving and “real-time” early resolution techniques that control and de-escalate disputes at an early-stage
Negotiation is a voluntary and usually informal process in which parties identify issues of concern, explore options for the resolution of the issues, and search for a mutually acceptable agreement to resolve the issues raised. The disputing parties may be represented by attorneys in negotiation. Negotiation is different from mediation in that there is no neutral individual to assist the parties to negotiate. Negotiation can be a useful adjunct to any other dispute resolution process
Step Negotiations/Issue Elevation
Step Negotiations sometimes called “Issue Elevation” is a variation of traditional negotiation, using successive levels of negotiation to encourage agreement. The negotiation process is structured so that if the individuals from each party who are most directly involved in a dispute are not able to resolve a problem promptly at their level, their immediate superiors, who are not as closely identified with the problem, are asked to resolve the problem. If they fail, the problem will be passed up to higher management of both parties. Because of an intermediate manager’s interest in keeping messy problems from reaching the desks of upper-level managers, and interest in demonstrating to higher management the intermediate manager’s ability to solve problems, there is a built-in incentive to resolve disputes before they reach the highest level.
An ombuds is a third party selected by an institution, for example, a university, hospital or governmental agency to investigate complaints by employees, clients or constituents. The ombuds works within the institution to investigate the complaints independently and impartially. The process is voluntary, private and non-binding.
Standing Neutrals and Dispute Review Boards
A Standing Neutral is a trusted neutral person or group of individuals appointed by the parties to a relationship, at the beginning of their relationship, to be available to assist the parties throughout their relationship in the “real time” resolution of any problems that occur during the relationship. The neutral should be known to and respected by the parties, and be in a position to be available on reasonable short notice to provide prompt objective advice to the parties whenever they cannot agree among themselves how to solve a problem. The availability of a respected expert who can administer a “dose of reality” when needed can have a therapeutic effect upon the relationship between the parties. Experience has shown that the mere existence of such a respected person encourages the parties to deal realistically with each other and often resolve problems themselves without referring them to the neutral, thus serving as a prevention device. Experience has also shown that on those occasions where the neutral is required to give advice, the parties, guided by that advice, are usually able to reach a consensual solution to the problem without having to resort to any formal dispute resolution process. Standing neutrals are known by various names, such as “wise person,” “mutual friend,” “referee,” or “interim dispute resolver,” and can come in different forms, such as: a “dispute review board” consisting of three neutrals, or an “initial decision maker” who closely monitors a relationship,” or a “standing mediator,” or a “standing arbitrator,” depending upon the needs of the parties.
Big Data Litigation Prevention
Big Data Litigation Prevention is an “early warning” computer-based system capable of identifying from a client’s internal communications, the risk of specific types of problems and lawsuits, before damage is done, to mitigate damage or prevent litigation. The process, supervised by in-house company counsel, involves scanning and extracting unstructured text from internal communications (e.g., email and other electronic data) and “scoring” those communications against one or more “deep learning” algorithms. If a pre-determined risk threshold is surpassed, in-house counsel, after investigating further, may make a privileged report to control group executives who can take appropriate action. In this way, the corporate legal department can become proactive, rather than reactive, in solving problems and preventing potential lawsuits.