Methods of Conflict Resolution

Federal Court Litigation, State Court Litigation, Negotiation, Minitrial, Fact Finding,
Settlement Conference, Private Judging, Conciliation, Multi-door Courthouse Center,
Mediation, Arbitration, Early Neutral Evaluation, Dispute Review Board, Cooperative
Law, Summary Jury Trial, Partnering, Facilitation, Med-arb, and Bucking-up.

Please EMAIL me your thoughts on the five most important concepts in resolving
disputes. Please refine these concepts to one or two words which would constitute the
five "Do's and Don'ts" of conflict resolution. Please rank these in order of importance so
that your first of the five "Do's" is the concept you believe to be the most important
concept in conflict resolution.

Federal Court Litigation – litigation in federal court.

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State Court Litigation – litigation in state court

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Negotiation – is a cooperative process whereby participants try to find a solution that

meets the legitimate interests of the parties involved. It is a discussion intended to
produce and agreement. Conflict Resolution is the process of (1) resolving or managing a
dispute by sharing each side’s needs and (2) adequately addressing their needs so that
they are satisfied with the outcome.
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Minitrial - The minitrial is an alternative dispute resolution (ADR) procedure that is used
by businesses and the federal government to resolve legal issues without incurring the
expense and delay associated with court litigation. The mini-trial does not result in a
formal adjudication but is a vehicle for the parties to arrive at a solution through a
structured settlement process. It is used most effectively when complex issues are at stake
and the parties need or wish to maintain an amicable relationship.
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Fact Finding - Factfinding establishes the scope and depth of a problem’s factual, legal,
personal and emotional issues and suggests response strategies to help prevent the
problem from expanding into a legal dispute or claim.
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Settlement Conference - A settlement conference is a type of hearing that a judge

conducts to help parties settle a lawsuit. It is scheduled either because all the courts in a
county or one particular judge require a settlement conference before the case goes to
trial, or because the parties and their lawyers ask the court to meet with them to help
settle the case. Settlement conferences may be available in civil cases, such as personal
injury and contract disputes; in domestic relations cases, such as divorces and paternity
suits; and in certain criminal cases. A settlement conference usually is held in the judge’s
chambers or in private conference rooms. There is no court reporter in the conference,
and persons who are not involved with the case may not attend.
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Private Judging - Private Judging is a special type of decisional process, based on

arbitration. A retired judge is appointed by parties in dispute to preside over a "private
trial".

The judge is required to be actively involved in the management of the process, which is
expected to be as efficient and as authoritative as possible. The judge’s objective is to
determine the dispute quickly, with finality, in accordance with the law.

The judges’ authority is derived from the Commercial Arbitration Acts. The fact that the
decision maker is a retired judge adds a whole extra dimension of authority to the
proceedings.

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Conciliation (same as directive mediation) - This is a more robust process than
Facilitative Mediation. The mediator is expected to use his or her professional
knowledge, judgment and experience more pro-actively - to express views and opinions
and to make suggestions that will help guide, or nudge, the parties towards resolution.

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Multi-door Courthouse Center - The Multi-Door Dispute Resolution Division (Multi-

Door) helps parties settle disputes through mediation and other types of appropriate
dispute resolution (ADR), including arbitration, case evaluation and conciliation. The
name "Multi-Door" comes from the multi-door courthouse concept, which envisions one
courthouse with multiple dispute resolution doors or programs. Cases are referred
through the appropriate door for resolution. The goals of a multi-door approach are to
provide citizens with easy access to justice, reduce delay, and provide links to related
services, making more options available through which disputes can be resolved.
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Mediation – (directed or facilitated) - Mediation is a form of assisted, structured,

problem solving, negotiation process. It is an excellent process for resolving most types
of dispute and conflict. It is also highly effective at producing mutually acceptable
outcomes when there are competing interests AND an underlying need to resolve the
clash amicably, rather than by winning a contest of wills, or resources.
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Arbitration (adjudication) - Arbitration (sometimes called “Adjudication”), is a private,

trial-like process that can be commenced by any two or more parties who agree to
arbitrate — either under a contract, by legislation, or by simple written agreement. A
properly designed, well managed arbitration process can be completed quickly and is a
highly efficient means of resolving many types of dispute.
The Arbitrator is usually an expert in the area of the dispute, eg: an accountant for a
financial/commercial dispute; a doctor for a medical dispute etc. If the issues are mainly
legal in nature, the Arbitrator may be a legal expert, eg: a solicitor, barrister or even a
retired judge.
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Early Neutral Evaluation - Case Appraisals are used to advise parties of the strengths
and weaknesses of their legal case - assuming they may go all the way to court. Cases
are assessed by retired judges, or by senior lawyers, who generally respond to the parties’
and/or their legal advisers' case presentations on an informal, verbal basis.
Case Appraisals provide opportunities for “dress rehearsals” before parties commit
themselves to irrevocable positions and expenditures in litigation. This recognises that,
with every case that’s ever gone to trial, at least one party got it wrong — and lost. This
process gives parties, particularly key decision-makers, an unbiased appraisal of their
prospects for winning.
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Dispute Review Board – in order to avoid litigation, the parties to a contract appoint, in
terms of the contract itself, a Dispute Review Board, consisting of two party appointed
members and of a neutral member. When a dispute arises, they meet and attempt to settle
the dispute.
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Cooperative Law (aka Cooperative Negotiation or Cooperative Practice) - is a

negotiation process in which the lawyers and parties involved enter into a “participation
agreement.” The agreements differ from case to case, but generally lay out the
groundwork for the negotiation process with an emphasis on minimizing conflict and
avoiding escalation toward litigation. In addition to describing the negotiating process,
Cooperative Law Agreements often include stipulations as to how the lawyers involved
will handle the litigation process if the parties choose to go that route, typically with a
focus on sticking to the merits of the case and avoiding tactics that would accelerate the
conflict.
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Summary Jury Trial – is a form of alternative dispute resolution designed to facilitate

settlement. It is often successful when other forms of ADR (alternative dispute
resolution) (i.e. mediation, arbitration) where attempted but failed. Its goal is to avoid the
time and expense of a full blown trial. The SJT is a counsel’s presentation to a 6-person
jury of the plaintiffs and defendants views of the case and the jury’s advisory decision to
the parties based on the presentations. It is a low-cost, no risk means of obtaining a jury’s
perception of the merits of the case. It is intended to facilitate settlement but does not
prevent the parties’ rights to a full trial.
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Partnering – commitment to a team approach that includes a proactive plan for conflict
management.

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Facilitation - The process stages are similar to mediation, but the parties may never
actually sit down together to thrash out the problem(s), perhaps because they prefer to use
the Facilitator to “shuttle” between them with ideas, proposals and offers.

Other facilitation processes may require the Facilitator to chair, or otherwise organise and
manage, problem solving meetings designed to address problems and to generate options
through brainstorming processes.

Facilitation can be as "hard" or "soft" as the parties and the circumstances demand.
Sometimes we are asked to do some "head kicking", more often it's a question of "softly,
softly" to achieve a necessary result.

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Med-arb - Med-arb is a combination of mediation and arbitration. The med-arb process

begins with the standard procedures of a basic mediation without pleadings, discovery,
subpoenas and the other formalities that are common to binding arbitration. The mediator
has the freedom that mediation allows them in being able to talk to the parties both
collectively or privately as he/she deems to be appropriate. In mediation, the parties
present their case to each other in hopes that they can come to an agreement to settle their
dispute. With the assistance of the mediator, the parties strive to understand the positions
and concerns of the other party with the expectation that the parties can reach a
settlement that is fair and equitable to both parties. At a point where the mediator and
both of the parties feel that they have come to agreement on as many items as is possible
through the mediation process, the mediator will assist the parties in executing and
signing a Mediation Settlement Agreement to cover the issues upon which the parties
have reached agreement. If all items have been successfully resolved, the med-arb
process will come to a close. If there are any unresolved issues after the mediation
process has concluded, they would then be forwarded on to the binding arbitration
process as specified in the Med-Arb agreement. It is interesting to note that had the
parties not chosen the Med-Arb process, the disputants would now have to utilize the
lengthy and costly litigation process to settle the unresolved items remaining after the
mediation process has concluded.
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Bucking Up
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