Are There Dispute Resolution Alternatives
DEAR TIM: I became involved in a dispute with my contractor. To make a long story short, we ended up in a court battle which lasted two years and cost thousands of dollars in attorney's fees. The case was not settled to my complete satisfaction. Can you suggest any other ways to settle disputes? Is there a way to make both parties agreeable to an alternative method? J. M.
DEAR J. M.: Court battles can be an extremely distasteful situation. Often the parties involved in the dispute fail to recognize historical facts concerning many court battles. Rarely does either party 'win'. Generally speaking, court battles become blood baths.
They almost always are long and drawn out and the financial costs can be overwhelming. Fortunately, there are several other methods that can be used to resolve a dispute.
Simple negotiation between the parties is frequently considered to be the first step in dispute resolution. Using this method, both parties should try to calmly discuss a solution to the problem. Often, the parties may employ attorneys to negotiate. However, it is not necessary.
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The parties should realize that the negotiations which occur at this level are often the exact same negotiations that occur just before going to a full blown trial. Realizing this, the parties can save months of time and huge sums of money to arrive at the same destination.
In the event that negotiating fails, the next level of dispute resolution is mediation. Mediation is usually conducted in a private, informal setting. A disinterested, knowledgeable third party should be chosen by the parties to mediate the dispute. This person does not try to say who is right and who is wrong.
He or she attempts to convince each party that the dispute will eventually have to be resolved. A mediator usually tries to offer suggestions as to how the dispute can be solved fairly. For the most part, mediators have no power to invoke a decision. They simply try to get the parties to settle.
Another method of dispute settlement is arbitration. Arbitration can be either binding or non-binding, depending upon what the parties agree to do. It is a more formal method of dispute resolution. It many ways it resembles a typical court case.
The individuals who are arbitrators often have been trained and often have experience in the situation which is being disputed. There are nationwide and local associations who perform arbitrations. Many local Better Business Bureaus also offer arbitration services to their members.
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A rarely used form of dispute resolution is that of private judging. This method is actually quite simple. The parties agree to employ a retired judge to make a decision regarding the dispute. It is a formal proceeding similar to a regular court trial.
Often the parties agree that the decision of the judge will be final. This method is attractive in some respects, simply because it takes much less time than a regular court case. Also, as long as the parties agree to a binding decision, neither party can appeal the decision.
The key to dispute resolution is to avoid it in the first place. Make sure that you have a very clear and concise contract before starting your job. Include in your contract specific language which addresses how you will settle a dispute.
Because disputes often cause people to polarize and become less likely to agree on anything, choosing a method of dispute resolution before it happens makes sense. Be sure to check with a competent contract attorney to make sure that this type of language and dispute resolution is permitted in your state. Good luck!
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