Alternatives to Civil

Court
Resolving Disputes
Junior Law
Introduction

• How do you solve disputes?

• How important is
• Discussion
• Negotiation
• Mediation
• What happens when the process
becomes more formal and
structured? 2
 Civil Law – Resolving Disputes

• Going to court (Litigation) is one option, but there are

other ways to resole disputes.
• Some are Collaborative
• working together towards a common goal
• Some are Adversarial
• me v. you; win:lose $
• We will look at the 5 ways people resolve their disputes
3
 Resolving Conflict
• Just speak to each other
• Arbitration
• More structured direct discussions
• Discussion • Involve a neutral 3rd party for disco
• Ask someone to make a decision in a
• Litigation
more formal environment with direct
• Mediation input
• Very formal; hire someone to argue and
4
• Negotiation make a decision for us
Resolving Conflict

• As the process of solving disputes becomes more

structured and formal the:
• Individual has less control over the outcome
• Parties will need to involve professional help (mediators,
lawyers, arbitrators or judges)
• More expensive the process
• More public the process and the results
• Less personal commitment the parties have to upholding 5

the outcome
Discussions and Negotiations

• The majority of disputes are settled on their own or

with some help
• Negotiations are any form of ‘unfacilitated’
communication in which people discuss the steps
necessary to resolve the dispute
• They occur directly between parties or indirectly
through agents acting on behalf of their parties.
6
Mediation

• In Mediation, an impartial 3rd party (the mediator) helps

the parties discuss their dispute and come to a mutually
agreeable solution
• Like discussions and negotiations, this does NOT happen in
the court room
• The mediator is trained to help people settle their
disputes collaboratively and has no decision-making
power 7
Mediation: Example

• A conflict of positions is when both parties say, “I want the

apples” but a mediator would ask the parties to talk about
what it is about the apple that is important to the parties. If A
says, “The apples are necessary so I can make apple pies to
sell for the fundraiser” and B says, “I need the apples for
their seeds, so I can grow apple trees.”
• How might you mediate this situation?

8
Mediators

• Having a mediator saves money an time without the

need for litigation
• However, the mediator may recommend legal advice,
but the parties now have a greater focus on what’s
important and it may go quicker
• The mediator also correct power imbalances the
parties may have
9
Mediation

• Mediation is usually an interest-based process and not

a rights-based process, so people act if it meets a
deeper interest
• Parties involved often like mediation over other forms
because they feel they participated in the solution and
are more likely to follow it
• Especially if there is an ongoing relationship
10
Arbitration

• In Arbitration disputes are submitted to a neutral decision

maker through presentation of evidence and arguments
• The decision is binding
• Private and voluntary
• Adversarial in nature
• Less predictable
• Procedure varies (eg rules of evidence)
• No appeal process
11
• No precedent (only reported to the parties involved)
Litigation

• Litigation is a formal method of resolving disputes that

involve bringing a lawsuit or civil action against
someone
• Decision is binding
• Public and involuntary (defendant)
• More predictable
• Appeals and precedent
• Professionals 12

• Most expensive option

Who’s Who and What’s What?

• Mediators • Collaborative approach

• Lawyers • Adversarial approach
• Arbitrators • Rights-based
• Judges • Interest-based

13
Questions for Homework

• What does Alternative Dispute Resolution mean?

• Why would it be important to have alternatives to the
civil court system?
• Describe negotiation, mediation, and arbitration
• Of the three options available to you, which one would
you most likely use? Why?
14
Case studies – Next Week

• Look at the case studies and choose one of the types of

alternate dispute resolution and say why it should be
used.

15