Beginners Guide to Dispute Resolution
Telling people that you work in dispute resolution is a real conversation starter. They can immediately picture themselves or someone they know with a dispute. Whether it’s a toxic relationship, a frustrating complaint or an overwhelming disagreement, it’s easy to imagine the stress of that situation and the relief of having professional support to get things back on track.
What’s harder to imagine is how we do what we do. Generally, people can understand the concept of dispute resolution, but are a little bit unsure of what that entails.
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.
Regardless of the process used, it’s important to remember that the person assisting the parties is neutral and independent. At FairWay, we ensure all of our practitioners are highly trained and skilled at assisting people in conflict move forward.
Below is a broad overview of dispute resolution processes as they commonly apply here at FairWay. Within these fields, there can be variations and specific legislative requirements which vary from scheme to scheme. This guide is meant as an overview, rather than as a definitive list.
If you have ever wondered what’s generally involved in dispute resolution, here is a beginner’s guide:
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.
Like: Facilitation is like a person chairing a meeting.
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.
Like: A mediator is like a guide. They help you to navigate the issue and they find a path for you to move forward.
Conciliation is similar to 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.
Like: A conciliator is a bit like a consultant. Someone you bring in for their expertise.
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.
Like: An adjudicator is a bit like a referee.
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.
Like: Arbitration is similar to having a private judge.
FairWay is New Zealand’s largest specialist conflict management and dispute resolution organisation. Each year, we handle over 14,000 disputes, reviews and enquiries. For more information visit www.fairwayresolution.com or contact us on 0800 77 44 22.