Dimensions of Dispute Resolution by Brandon Hastings

BRANDON HASTINGS

Litigation, arbitration, mediation, and negotiation. In deciding how to move forward in resolving disputes, these “big four” methods dominate the conversation. They aren’t the only options, however, and parties who engage in non-court dispute resolution often want to tailor a process to meet their needs. Modes of dispute resolution (“DR”) are, therefore, infinitely granular.

To introduce DR methods, options are often laid out visually: either on a single line, or in a chart format with one column per option. Considerations often include resource requirements (including time and money), emotional dimensions (including impact on relationships), confidentiality, complexity, degree of collaboration, and formality. Where a single line is used, methods are laid out on a continuum of one consideration. Where a chart is used, a number of considerations are “scored” (e.g. high cost / low cost) for each method. I would suggest that rather than describing the sine qua non of particular methods, however, these graphics tend to observe frequent — but not necessarily implied — consequences of particular DR processes.

There are, for example, many contexts in which parties may engage in a process which is more formal, more expensive, and more emotionally demanding than that presented by court. Practically, these situations are rare, but include where parties feel best served by a detailed, adversarial process, and choose arbitration so they can guarantee an adjudicator who has particular subject-matter expertise. Other circumstances may include where parties need a decision so rapid the court is not able to accommodate. Either of these scenarios may arise by choice after a dispute has begun, but parties would also commonly choose these processes before a dispute occurred, through a binding arbitration clause.

I posit that a useful way of categorizing choices is along two dimensions: (1) parties’ control over process, and (2) parties’ ability to control the outcome. Formality, complexity, cost, etc., would then be consequences of these dimensions.

Negotiation

Mediation

Arbitration

Litigation

On control over outcome, adjudicative and directive methods rank lower than facilitative and collaborative methods. On control over process, voluntary methods rank high, while compulsory dispute resolution ranks low. Mediation and arbitration, because a thirdparty neutral is involved in decisionmaking to some degree, will often eschew some of the parties’ ability to control the process and outcome in favour of the third-party neutral’s expertise and professional ethics.

The benefit of a process where parties have relatively low control over that process is that the parties do not have to spend time tailoring (or attempting to tailor) a process to meet their needs. On the other hand, the available “off the shelf” processes may not meet parties’ needs in terms of mitigating emotional impact, the full exercise of their legal rights, customization of the process, and nuance available in their final resolution (and the degree of collaboration required), to name just a few examples. Parties will also likely be concerned with how they participate, including whether their involvement is synchronous or asynchronous, collaborative or adversarial, and online or in person.

A good starting point in describing the types of DR available to clients, is discussing the way that choice affects their control over the process and outcome. From there, we can talk about the consequences of their choices (including cost, formality, etc.) and work on creating or deciding on a process or processes that best suit their needs.

Brandon D. Hastings is a litigator, civil mediator and family mediator, at Cassady & Company in New Westminster. Brandon is also the CBABC’s Young Lawyers Representative, Founder of The Justice Hack and co-founder of Vancouver Legal Hackers (bhastings.com).

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