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Page 14 of 18 |
What alternative dispute techniques are available besides a lawsuit? |
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There are three main alternatives to resolving civil controversies besides filing a lawsuit:
NEGOTIATION AND SETTLEMENT - The most common method for resolving controversies is negotiation and settlement. The party who feels s/he has been harmed goes to the other party to discuss the matter. During the discussion, each party presents his/her position to the other with reasons why there should or should not be a settlement. If the negotiation fails to resolve the controversy, other actions can be taken. If the negotiation results in a settlement, the controversy is over. While the settlement does not have to be reduced to a writing signed by all the parties, a signed writing can be very useful in the event that one or more of the parties fails to live up to his/her end of the bargain.
ARBITRATION - A controversy can be submitted to an impartial third party (often an attorney or a retired judge) selected by the parties. In submitting the controversy to the arbitrator, the parties agree in advance to abide by and be bound to the award determined by the arbitrator. (It is possible to have a "non-binding" arbitration, in which the arbitrator's award can be disregarded and a lawsuit filed if one party does not agree with the arbitrator's award.) Instead of going to court, the arbitrator determines procedures like the date by which all documents must be exchanged between the parties, and the date when the hearing will be held. If the parties are unable to resolve the controversy before the hearing date, the hearing is conducted and then the arbitrator renders his/her award. In binding arbitration, the arbitrator's award can then be submitted to a court of law for entry as a judgment. Arbitration is used to avoid the formalities, expense, delay and aggravation of a formal lawsuit.
MEDIATION - A controversy can be submitted to an impartial third party mediator (typically someone who is readily familiar with similar controversies, such as a professional accountant, realtor, business owner, attorney or retired judge) selected by the parties. The parties agree in advance to make a good faith effort to resolve the controversy with the assistance of the mediator. The mediator then works with the parties in an effort to reach an agreement or compromise but does not have the authority to enter an award. The mediator discusses the matter with each party and points out respective strengths and weaknesses of each party's position. Through a give and take process, the parties and the mediator strive to obtain an agreement for resolution of the problem. Like arbitration, mediation is used to avoid the formalities, expense, delay and aggravation of a formal lawsuit.
Arbitration and mediation are gaining popularity as methods for resolving controversy. These methods often save considerable expense, time and aggravation. Prior to filing a lawsuit, alternative dispute resolution techniques should be attempted, especially where the potential for resolution is high. |
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