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Dispute Resolution

Overview

Regretfully, most of us did not attend classes on how to handle disagreements when we were growing up. In the absence of such structured learning, we each acquired our skills the hard way, through trial and error. We learned how to deal with at least three different types of conflict: with our parents/care givers, with our siblings and peers, and within ourselves.

Partly because "how to deal with conflict" has generally not been formally taught - either in school or at home - whatever skills we develop when growing up tend to be almost unconscious. And if we develop techniques that work - at least some of the time - we may not see a need to develop them further. However, in my experience improving how we handle disagreements with others has significant advantages. 

Formal Processes

Thankfully, if the skills we have are not quite enough to negotiate our way to a satisfactory outcome, in our society there are a number of processes available for resolving differences and disputes. Selecting the best process depends on what the people involved in the dispute want: if they would prefer someone else to make the decision for them, one option might be to go off to the Disputes Tribunal - or even go to the extreme of entering the court room represented by the best lawyer they can afford.

However, if the parties would still prefer to "sort it out" themselves, perhaps with some assistance,  mediation may be a good option. So let's have a brief look at each of the main dispute resolution options:

Direct negotiation. This usually works well enough -  if there are only a few disputants and/or if everyone really wants to resolve the issue(s) and/or if everyone has acquired better than average skills in negotiation.

Third party assistance. When the parties can't successfully negotiate directly (for whatever reason) a third party can be really helpful. This could be an advocate to negotiate on your behalf, or it could be that the parties to the dispute agree to jointly engage a third party to help them sort things out. A "Mediator" is one such person - discussed below in more detail, and my personal favourite.

Third party decision maker. If the parties have a dispute involving something quite specialised, an "Expert Determination" could be their best choice. This is a "Determination" (usually binding) by someone the parties believe really does know the subject inside out, so they agree to empower this person to undertake his or her own investigation and reach a decision they will abide by.

Somewhat similar is an "Arbitrator" - a person whom the parties agree to give very specific powers to come to a decision on their dispute: "We want you to decide this and only this and we will give you some limited power to enable you to reach the decision we need." Traditionally, arbitrators operated more like the "Expert Determination" described above - often someone both parties trusted to have specialised knowledge about whatever was in dispute. Nowadays Arbitrators tend to be more like judges who hear evidence quite formally and then make a decision based on what has been presented to them (rather than carrying out their own investigations).

In the construction world, we now have "Adjudicators" who are, in effect, a sort of sub group of Arbitrators. This concept comes from the "Construction Contracts Act" which applies to all construction contracts entered into after 1 April 2003. Consumer Build has an excellent page on this Act here. In short, this act aims to get sub trades paid on time - even if there is a dispute. (Pay now, argue later).

The disputes Tribunal. The tribunal was established in 1988 and they keep on increasing the dollar cap - so now you can take quite a big dispute to them. Very popular, at least partly because lawyers are excluded. The "referee" will try and get the parties to agree, if they cannot, the referee will make the decision for them. Almost all the referees are lawyers so decisions are usually based on the law. You don't get much time to state your case, and unfortunately (in Auckland at least) they are so busy you generally have to wait quite a while for a hearing.

The court system.  Lawyers make money, everything else is less certain. 

Why give up control of the process?

One way of considering these various ways of dealing with disputes is in terms of how much control is retained by the actual parties to the dispute.

The more "third parties" - individuals not directly involved in the dispute - enter the arena, the less power the original protagonists have to sort things out between themselves. Most obviously, once you enter the court system, there is a palpable sense of disempowerment - firstly, you hand your case over to your lawyer, then ultimately to the Judge who finally decides your dispute, and you have virtually no say in the process or the outcome.

Natural Justice

Another way to look at these systems is in terms of "Natural Justice" This is an ancient concept: a sort of limited, or ritualised "fairness". The principle is that anyone who is accused of something has the right to hear the details of the case against them, and defend themselves in public. It sounds great and it is great. We could almost say all the freedom we enjoy in our society is based on it.

But sometimes it misses out an awful lot. And we all know the famous expression: "The law is an ass." This expression is a reflection of the fact that our concepts of "fairness" go way beyond what the law is equipped to deal with. Never the less, it is important to understand the principle - that an impartial, objective and JUST individual will hear all the relevant facts and make an impartial, objective and JUST decision. No one is deprived of the opportunity to speak, as long as what they have to say is relevant. That's "Natural Justice." Mediation is an entirely different concept, because it recognises and can accommodate so much more than the mere facts a Judge would sagely consider - and because it can (with agreement) dispense with so many matters which a Judge would have to ponder.

Mediation

Mediation deserves a page all to itself.... More

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