Dispute Resolution Services

Here is an explanation of the different types of dispute resolution services that I use. This will help you to understand which processes could apply to your situation.

Dispute resolution usually falls within two fields – consensual processes where the parties are supported by an independent person to reach their own agreement or determinative processes where an independent person makes a decision on the matter.

Consensual processes

Facilitation

Facilitators create the right environment and process for constructive conversations to take place. Facilitation helps groups of people explore and reach consensus on issues. Facilitators, as neutral third-parties, guide the parties to an agreement in an informal but assisted manner. Usually, facilitation is used for non-confidential matters.

Facilitation is like a person chairing a meeting.

Mediation

Mediation is a voluntary, confidential process where the parties are encouraged by a mediator to understand each other’s perspectives, talk through the issues, identify their mutual interests, develop realistic options, and find a solution that the parties can agree to.

Mediation involves many different techniques to assist the parties in reaching agreement. For example, a primary focus in a mediation may be restoring relationships where there are ongoing relationships and trust has been lost. In other cases, the focus may be on assisted negotiation techniques to help parties in reaching agreement about a common issue, or item of value. Regardless of the techniques and tools used, mediation focuses on the parties, their relationship, their interests and needs, and empowers them to find a way forward.

A mediator is like a guide. They help you to navigate the issue and they find a path for you to move forward.

Conciliation

Conciliation is like mediation, but the conciliator plays a more active role in resolution. The conciliator is more likely to have subject-matter expertise, has more input into the discussion, and (where the parties agree) can provide their views on what is likely to happen in the dispute if the parties can’t reach their own agreement. As an example, a conciliator could share how similar issues have been resolved or could suggest different options.

A conciliator is a bit like a consultant. Someone you bring in for their expertise.

Determinative processes

Adjudication

An adjudicator is a trained expert who weighs up all the evidence in a dispute and makes a legally binding decision on the matter. Adjudication is a good choice when the parties want someone independent to make a decision for them. Adjudication may also be a required process for parties under a statute or code, for example under the Construction Contracts Act 2002 you can refer a dispute to be determined by an adjudicator. Depending on the process, the decision can be either public or confidential.

An adjudicator is a bit like a referee.

Arbitration

Arbitration is similar to adjudication in that an independent person makes a decision on a dispute. Unlike adjudication, arbitration is a more formal process determined by the Arbitration Act 1996. This confidential process is used by agreement and there are many ways parties can agree to arbitration. For example, many commercial contracts include mandatory arbitration clauses. By agreeing to the terms of the contract, you also agree to the process for resolving issues about those terms.

Arbitration is like having a private judge.