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Different Types of Process … and when
to use them
We offer a comprehensive suite of confidential dispute resolution processes,
divided into four major categories. Each category comprises several
distinct processes, each having its own particular strengths, weaknesses
and "best fit" applications.
Based on parties' requests, our analysis or (preferably) using a mixture
of both, we match optimal processes to specific types of dispute and conflict
and to individual parties' needs.
Our four process categories are:
1. Decisional Processes: Binding Decisions
The dispute resolver makes a ruling, judgment or determination on legal
and/or factual issues:
- Arbitration, Adjudication
& Expert Determination
Expert professional dispute resolvers organise and case manage the dispute
resolution process; review and evaluate relevant evidence;
determine facts and points of law and produce legally binding, written
judgments (called "awards" or "determinations").
- Private Judging
As above, with the added attraction of using retired senior judges to
manage the dispute resolution process in the form of confidential, private
trials. These result in written judgments (awards) that are legally
binding on the parties. Private Judging has most of the authority
of a court process, added to which it is confidential, quicker, more
efficient and significantly cheaper than litigation.
2. Non-Decisional (Collaborative) Processes: Managed Negotiations
The dispute resolver manages a problem solving negotiation process that
is designed and run to help parties understand and come to terms with
their respective positions and interests, generate options for resolution
and develop mutual agreements:
- Facilitation
Facilitators bring professional communication and people management
skills to meetings and important negotiations. They help to produce
results where parties recognise they have serious differences, but don’t
consider themselves to be in dispute - or don't want to acknowledge
that they could be in dispute!
- Mediation (Facilitated)
Facilitative Mediators manage a style of negotiation process designed
to help solve problems and generate settlement options. This type
of Mediator is a neutral process manager who is neither expected nor
required to express opinions on the issues.
Being focused on the process, the Facilitative Mediator does not actively
encourage the parties towards settlement, instead they help the parties
to develop their perceptions, draw their own conclusions and develop
their own solutions.
- Mediation (Directed)
Directive Mediation is a more robust style of mediation. The Mediator
is expected/required to provide opinions and suggestions and to
actively encourage the parties towards resolution.
Directive Mediation is, by far, our most successful and most popular
dispute resolution process.
- Conciliation
Outside of fixed, statutory applications, we believe this term should
be permanently mothballed, because it seems to produce so much confusion.
For Conciliation services please see our description of Directed
Mediation above – we believe that, for all practical purposes,
they’re the same thing!
3. Advisory & Evaluative Processes: Expert Opinions (non-binding)
The dispute resolver assesses the legal and/or factual and/or technical
issues in dispute and advises the parties of the absolute and relative
strengths and weaknesses of their positions:
- Case Appraisal (legal)
Retired judges or senior lawyers evaluate and comment on the merits,
or otherwise, of parties’ legal positions or arguments.
This process is highly cost-effective as it provides an excellent facility
for preparing / reality checking a case before negotiations, mediation
or litigation.
- Expert Assessment (technical)
Experts from a range of professional disciplines (eg: accountants, doctors,
engineers etc) evaluate and comment on the apparent technical strengths
and weaknesses of parties’ cases. This process is also highly
cost-effective as it provides an excellent opportunity to test, reality
check and modify cases (if required) before committing substantial resources
to negotiations, mediation or litigation.
4. Neutral Interventions: Factfinding & Problem Solving
The dispute resolver has a mandate to "get in and see what they
can do" to help rectify and resolve a situation that may otherwise
develop into a serious conflict:
- Independent Factfinding
Independent expert identification and scoping of a wide variety of problems,
plus evaluation of potential litigants’ needs. This may
include a brief to establish: objective facts, parties’ needs,
interests and positions etc.
- Neutral Intervention
Goes beyond simple factfinding. An expert Mediator shuttles between
the parties to identify or generate a “low impact” solution
to a problem without the need to ever enter into a formal dispute resolution
processes.
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