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Methods for resolving conflicts and disputes.

What Are Your Options: We are all familiar with the most traditional dispute-resolution process of our civil justice system: litigation and trial with a judge or jury deciding who is right or wrong – where someone wins and someone loses. However, there are many other options available. Negotiation, mediation and arbitration, often called ADR or alternative dispute resolution, are the most well known.

Whether you are involved in a family or neighborhood dispute or a lawsuit involving thousands of dollars, these processes should be considered. They are often the more appropriate methods of dispute resolution and can result in a fair, just, reasonable outcome for both you and the other party involved. Settlement and compromise have long been favored in the legal system. In fact, most cases that are filed in a court are settled and never go to trial. Only 5% of all cases filed go to trial. ADR procedures are excellent options for you in dealing with controversy, allowing you to reach resolution earlier with less expense than traditional litigation and allow you to maintain control of your legal matter. In fact, many courts require parties to consider some form of ADR before going to trial. The following processes describe ways to resolve disputes.

NEGOTIATION

Definition: Negotiation is the most basic means of settling differences. It is back-and-forth communication between the parties of the conflict with the goal of trying to find a solution.

The Process: You may negotiate directly with the other person. You may hire an attorney to negotiate directly with the other side on your behalf. There are no specific procedures to follow – you can determine your own – but it works best if all parties agree to remain calm and not talk at the same time. Depending on your situation, you can negotiate in the board room of a big company, in an office or even in your own living room.

Negotiation allows you to participate directly in decisions that affect you. In the most successful negotiations, the needs of both parties are considered. A negotiated agreement can become a contract and be enforceable.

When and How Negotiation is Used: Most people negotiate every day. In some circumstances, you may want a lawyer to help you negotiate a fair deal. Negotiation is the first method of choice for problem solving and trying to reach a mutually acceptable agreement. If no agreement is reached, you may pursue any of the other options suggested here. This process can be appropriately used at any stage of the conflict – before a lawsuit is filed, while a lawsuit is in progress, at the conclusion of a trial, even before or after an appeal is filed.

Characteristics of Negotiation:

Private and confidential
Quick and inexpensive
Informal and unstructured
Parties control the process, make their own decisions and reach their own agreements (there is no third-party decision maker)
Negotiated agreements can be enforceable in court
Can result in a win-win solution

Definition: Mediation is also a voluntary process in which an impartial person (the mediator) helps with communication between the parties and promotes reconciliation, which will allow them to reach a mutually acceptable agreement. Mediation is often the next step if negotiation proves unsuccessful.

The Process: The mediator manages the process and helps facilitate negotiation between the parties. A mediator does not make a decision nor force the parties to reach an agreement. The parties directly participate and negotiate their own settlement or agreement.

At the beginning of the mediation session, the mediator will describe the process and ground rules. The parties, or their attorneys, have an opportunity to explain their view of the dispute. Mediation helps each side better understand the other’s point of view. Sometimes the mediator will meet separately with each side. Separate “caucusing” can help address emotional and factual issues as well as allow time for receiving legal advice from your attorney. Mediations are generally held in the office of the mediator or another agreed neutral location.

Agreements can be creative and tailored to your specific needs. You could reach a solution that might not be available from a court of law. For example, if you owe someone money but don’t have the cash, rather than be sued and get a judgment against you, settlement options could include trading something you have for something the other party wants. If an agreement is reached, it will generally be put in writing. Most people uphold a mediated agreement because they were a part of making it. If a lawsuit has been filed, the agreement is typically presented to the court as an enforceable order. If no lawsuit has been filed, the mediation agreement can become an enforceable contract. If no agreement is reached, you have not lost any of your rights, and you can pursue other options such as arbitration or going to trial.

When and How Mediation is Used: When you and the other person are unable to negotiate a resolution to your dispute by yourselves, you may seek the assistance of a mediator who will help you and the other party explore ways of resolving your differences. You may choose to go to mediation with or without a lawyer depending upon the type of problem you have. You may always consult with an attorney prior to finalizing an agreement to be sure you have made fully informed decisions and all your rights are protected. Sometimes mediators will suggest you do this. Mediation can be used in most conflicts, ranging from disputes between consumers and merchants, landlords and tenants, employers and employees, family members in such areas as divorce, child custody and visitation rights, eldercare and probate, as well as simple or complex business disputes or personal injury matters. Mediation can also be used at any stage of the conflict, such as facilitating settlements of a pending lawsuit.

Who Provides This Service: Attorneys and other professionals provide private mediation for a fee. If you have an attorney, you can work together to select a mediator of your choice. You may want a mediator who is knowledgeable about the subject matter of your dispute. You may wish to use a for-fee mediator in the first instance or if early settlement mediation has not resulted in a resolution of your dispute. You may also find mediators or mediation services listed in the telephone directory or available on lists provided by some courts or private professional organizations. When selecting a mediator, you should always check their credentials and get references. Mediators qualified under the District Court Mediation Act or certified pursuant to the Dispute Resolution Act meet statutory standards of training and experience.

Public mediation services are available through Early Settlement Regional Centers located statewide. A list of the regional centers can be found online at www.oscn.net/static/adr. This program provides the services of volunteer mediators, trained and certified to mediate in the Administrative Office of the Oklahoma Supreme Court. Mediators in this system are assigned to mediate your dispute by the various program administrators. They are available at minimal or no charge to help you resolve conflicts, often without the assistance of an attorney or the need to go to court. Call 405-556-9300 for the phone number and location of the center nearest you.

You may also find mediation in our state and federal court systems called court-sponsored mediation. Generally, you and your attorney may select a private mediator or choose a public service. Fees may apply. Judges are frequently referring cases to settlement procedures, such as mediation, to help litigants resolve their disputes in less time and with less cost than litigation and trial.

Characteristics of Mediation:

Promotes communication and cooperation
Provides a basis for you to resolve disputes on your own
Voluntary, informal and flexible
Private and confidential, avoiding public disclosure of personal or business problems
Can reduce hostility and preserve ongoing relationships
Allows you to avoid the uncertainty, time, cost and stress of going to trial
Allows you to make mutually acceptable agreements tailored to meet your needs

ARBITRATION

Definition: Arbitration is the submission of a disputed matter to an impartial person (the arbitrator) for decision.

The Process: Arbitration is typically an out-of-court method for resolving a dispute. The arbitrator controls the process, listens to both sides and makes a decision. Like a trial, only one side will prevail. Unlike a trial, appeal rights are limited.

In a more formal setting, the arbitrator will conduct a hearing where all parties present evidence through documents, exhibits and testimony. The parties may agree to, in some instances, establish their own procedure, or an administrating organization may provide procedures. There can be either one arbitrator or a panel of three arbitrators. An arbitration hearing is usually held in offices or other meeting rooms.

The result can be binding if all parties have previously agreed to be bound by the decision. In that case, the right to appeal the arbitrator’s decision is very limited. An arbitrator’s award can be reduced to judgment in a court and thus be enforceable. In nonbinding arbitration, a decision may become final if all parties agree to accept it, or it may serve to help you evaluate the case and be a starting point for settlement talks.

How and When Arbitration is Used: A common use of arbitration is in the area of labor disputes – between firefighters and the city in wage disputes, for example. You will usually be represented by an attorney in arbitration.

Many contracts have clauses that require that disputes arising out of that contract be arbitrated. You may have seen such a provision when you applied for a credit card or opened a retirement account or other account with a stockbroker. You may want to explore using this process if you and the other side agree that the problem needs to have someone make a decision, but you do not want the expense of going through the court process. If you agree to arbitrate or sign a contract with an arbitration clause, you should understand the arbitrator may make the final decision, and you may be waiving your right to a trial in court.

Who Provides This Service: Many attorneys, other professionals or professional associations offer their services as arbitrators. Typically, your attorney will select the arbitrator based on the particular type of dispute. In complex and highly technical cases, often an arbitrator who is knowledgeable in that field is chosen. Usually, fees are charged.

Some courts offer court-sponsored, nonbinding arbitration and have specific procedural rules to follow.

Characteristics of Arbitration:

Can be used voluntarily
Private (unless the limited court appeal is made)
May be less formal and structured than going to court, depending on applicable arbitration rules
Usually quicker and less expensive than going to court, depending on applicable arbitration rules
Each party will have the opportunity to present evidence and make arguments
May have a right to choose an arbitrator with specialized expertise
A decision will be made by the arbitrator that may resolve the dispute and be final
Arbitrator’s award can be enforced in a court
If nonbinding, you still have the right to a trial
Arbitration is not typically permitted for family law matters

LITIGATION (GOING TO COURT)

Definition: Litigation is the use of the courts and civil justice system to resolve legal controversies. Litigation can be used to compel the opposing party to participate in the solution.

The Process: Litigation is begun by filing a lawsuit in a court. Specific rules of procedure, discovery and presentation of evidence must be followed. The attorney for the other side will want to take your deposition to learn more about the facts as you see them and your position in the case. There can be a number of court appearances by you and/or your lawyer. If the parties cannot agree on how to settle the case, either the judge or a jury will decide the dispute for you through a trial.

A trial is a formal judicial proceeding allowing full examination and determination of all the issues between the parties, with each side presenting its case to either a jury or a judge. The decision is made by applying the facts of the case to the applicable law. That verdict or decision can conclude the litigation process and be enforceable; however, if appropriate, the loser can appeal the decision to a higher court. In some cases, the losing party may have to pay the costs of the lawsuit and the other party’s attorney fees.

How and When Litigation is Used: Our American civil justice system is one of the best in the world. Our Constitution gives us the right to a fair trial. If you want your day in court with a judge or jury of your peers deciding the outcome, the pursuit of litigation and trial of the case is for you.

You may be in a municipal court, state district court or federal court depending on the type of dispute you have and where your attorney files your case or where you get sued. State court trial judges are elected on a nonpartisan ballot, though vacancies are filled through an appointment process from highly qualified applicants. The district courts also appoint special judges who handle certain kinds of cases, such as small claims and divorces. These judges are selected by the district judges from qualified applicants. Federal district judges are nominated by the president and confirmed by the U.S. Senate. Federal magistrates are selected by the federal district judges. In all courts, cases are randomly assigned to the various judges. You have no choice concerning which judge will hear your case. Juries are randomly selected from a jury wheel of licensed drivers within each state judicial district and, in the case of federal court juries, from a jury wheel of registered voters and drivers license holders.

If you cannot settle your differences through negotiation, mediation, arbitration or some other means, you can pursue litigation through the courts with your lawyer.

Characteristics of Litigation:

Involuntary – a defendant must participate (no choice)
Formal and structured rules of evidence and procedure
Each party has the opportunity to present its evidence and argument and cross-examine the other side – there are procedural safeguards
Public – court proceedings and records are open
The decision is based on the law
The decision is final and binding
Right of appeal exists
Losing party may pay costs

OTHER DISPUTE RESOLUTION PROCEDURES AND WHERE YOU MAY FIND THEM

If you have a problem with a new car, you may find automobile arbitration through the Better Business Bureau to be a solution for you. The manufacturer of your car may also have a process of resolving disputes.

If you are involved in agriculture and have a farmer-creditor controversy, the Agricultural Mediation Program may be helpful to you. For more information, visit www.ok.gov/mediation or call 800-248-5464.

Victim-offender mediation, which can result in restitution to the victim, is available through the Oklahoma Department of Corrections.

Other state and federal agencies sometimes offer settlement options in addition to their regular administrative procedures. For example, mediation of workers’ compensation claims is now available.

If you do go to court, in addition to court-sponsored mediation or other ADR programs, you may find more procedures that encourage settlement or can resolve the dispute. Your attorney can tell you about the processes available in the court in which your case is pending.

Appellate courts, such as our state Supreme Court and the federal 10th Circuit Court of Appeals, have settlement conference opportunities.

Don’t forget Small Claims Court, where a judge can decide your dispute, usually without a lawyer, if your claim is valued under $10,000. Early settlement mediation is often available here to offer settlement assistance first, so you may not need to go before the judge.

Managing meetings and reaching consensus within any kind of organization or group can often be achieved through the assistance of a trained facilitator. Facilitators are available through various nonprofit support centers and service leagues or other community organizations.

School Peer Mediation – Peaceful Resolutions for Oklahoma Schools (PROS), a project of the Oklahoma Bar Association Law-Related Education Department and Early Settlement, is training students to mediate their own disputes.

Communication and conflict resolution skills classes may be available in your community by contacting the Law-Related Education Department at the Oklahoma Bar Association thanks to a partnership with Leadership Oklahoma.

The OBA Alternative Dispute Resolution Section may be a resource to identify additional options.

SELECTING THE APPROPRIATE METHOD

The method you use to resolve your dispute will depend upon your personal needs and the nature of your particular dispute. You may want to consult with an attorney to help diagnose which process best serves your particular situation.

Considerations:

Private and confidential or in a public court setting
Informal setting and a more flexible process or one that is more formal and has specific rules to follow
Personal control or decision made by a judge or arbitrator
Maintaining relationships
Dispute decided on questions of law, resolved with business principles or a solution found through other fair, yet practical means
Binding and easily enforceable

There will always be times when a courtroom trial is the best option. Often, however, you are better served by one of the other alternative dispute resolution processes described in this brochure. With a better understanding of the considerations that can help you choose the most appropriate method, your conflicts can be more successfully managed and your disputes more satisfactorily resolved.

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Choosing Mediation, Arbitration, or Litigation: Your Path to Resolution

When faced with legal conflicts or disputes, seeking resolution through peaceful means can often be more beneficial than engaging in lengthy and costly court battles. Alternative dispute resolution methods, such as mediation, arbitration, conciliation, and litigation, offer parties a way to resolve conflicts outside the courtroom. Each approach has its own unique benefits and considerations. This blog will delve into the differences between these methods, offering insights to empower individuals and businesses with the knowledge they need to make informed decisions.

Mediation: Collaborative Problem Solving

Mediation is a voluntary, non-binding process wherein an impartial mediator helps parties involved in a dispute reach a mutually acceptable agreement. This process enables the disputing parties to maintain control over the outcome and actively participate in creating a solution that meets their needs.

The Role of the Mediator : The mediator, a trained professional, facilitates communication, identifies common interests, reframes issues, and explores potential solutions. Notably, the mediator does not impose a resolution.

Benefits of Mediation: Mediation promotes communication, cooperation, and creative problem-solving. It can preserve relationships, save time, reduce costs, and lead to more personalized outcomes.

Trapp Law, LLC can provide skilled mediators to guide the process if you seek a collaborative approach to dispute resolution. Visit Trapp Law, LLC, to learn more.

Arbitration: A Private and Binding Process

Arbitration is a formalized method of dispute resolution that removes decision-making power from the courts and places it in the hands of one or more independent arbitrators. Parties present their cases in this process, and arbitrators render a final, binding decision.

The Role of the Arbitrators : The arbitrators act similarly to judges, reviewing evidence, hearing arguments, and ultimately issuing an enforceable decision, known as an award.

Benefits of Arbitration: Compared to litigation, arbitration offers greater privacy, flexibility, and efficiency. It allows parties to choose their arbitrators, manage the timeline, and tailor proceedings to suit specific needs.

If you require an impartial arbitrator to preside over your dispute, Trapp Law, LLC has experienced arbitrators ready to support your case. Explore our arbitration services at Trapp Law, LLC.

Conciliation: Facilitating Communication and Confidentiality

Conciliation shares similarities with both mediation and arbitration. It is often used in labor relations or larger-scale disputes where maintaining a confidential and cooperative working relationship between parties is critical.

The Role of the Conciliator: A conciliator acts as a neutral third party who helps parties communicate effectively, explore alternative solutions, and negotiate a mutually acceptable agreement.

Benefits of Conciliation: Conciliation maintains confidentiality while preserving parties’ ability to have an active role in shaping the outcome. It allows the involved parties to keep open lines of communication and find common ground.

Trapp Law, LLC offers conciliation services supported by seasoned professionals who can help bridge gaps and facilitate a resolution. Learn more about our conciliation services at Trapp Law, LLC.

Litigation: The Courtroom Battle

Litigation is the traditional process of resolving disputes through the court system. It involves presenting evidence, legal arguments, and testimony before a judge or jury who will issue a binding decision.

The Role of the Court: In litigation, the judge serves as the neutral decision-maker, applying applicable laws, rules, and precedents to render a definitive judgment.

Benefits and Considerations of Litigation: Litigation provides a formal and structured process where parties can rely on courts to enforce their rights. However, it is also time-consuming and expensive and may strain relationships.

Trapp Law, LLC boasts a team of knowledgeable litigators who will provide zealous advocacy and guidance if litigation becomes necessary. Discover our litigation services at Trapp Law, LLC.

Contact Trapp Law, LLC Today

Understanding the differences between mediation, arbitration, conciliation, and litigation empowers parties involved in disputes to choose the most suitable approach for their unique circumstances. Whether seeking collaboration, privacy, or an independent decision-maker, Trapp Law, LLC’s experienced professionals stand ready to provide our expertise. Explore our website today to discover how our services can help you find the best path forward.

Using Alternative Dispute Resolution Techniques

GENERAL SERVICES ADMINISTRATION Washington, DC 20405

CSL P 5050.1A, Extended

March 23, 2005, Extended July 8, 2016; Extended November 23, 2022; Extended 11/30/2023

SUBJECT: Using Alternative Dispute Resolution Techniques

1. Purpose . This order transmits the Using Alternative Dispute Resolution Techniques Handbook. 2. Background . a. On November 15, 1990, Congress enacted Public Law 101-552, the Administrative Dispute Resolution Act (the "Act"), to promote the use of alternative dispute resolution (ADR) techniques by Federal agencies. The Act provides agencies with the explicit authorization to consider and use means other than litigation to resolve disputes that arise in connection with administrative proceedings. The goal is to enhance the operation of the Government by improving service to the public. The Act has since been amended by Public Law 104-320 October 19, 1996 (5 USC § 571). b. The Act requires, among other things, that each agency adopts a policy on the use of ADR techniques, designates a senior official as the Dispute Resolution Specialist for the agency, and provides training for all personnel involved in implementing the agency's policy. The Dispute Resolution Specialist is the agency official responsible for implementing the provisions of the Act and the agency's policy on the use of ADR. On December 5, 1990, the Administrator appointed the General Counsel to serve as the Dispute Resolution Specialist for GSA. c. GSA is committed to using dispute prevention methods and ADR techniques to effect prompt, efficient, and just resolution of disputes. d. This handbook sends a clear message to GSA employees that using ADR to resolve disputes involving the Federal Government is an accepted and, indeed, the preferred practice. It also provides support for GSA's effort to develop and implement an effective ADR program. 3. Scope . This handbook is not meant to supersede collective bargaining agreements or other statutory, regulatory, or contractual dispute resolution procedures. The techniques described in this handbook are intended to supplement rather than replace existing procedures. GEORGE N. BARCLAY Acting General Counsel GENERAL TABLE OF CONTENTS USING ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES

CHAPTER 1. INTRODUCTION

CHAPTER 2. POLICY ON USE OF ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES

CHAPTER 3. NEGOTIATION

CHAPTER 4. FACILITATION

CHAPTER 5. MEDIATION

CHAPTER 6. FACTFINDING

CHAPTER 7. MINI-TRIAL

CHAPTER 8. ARBITRATION

CHAPTER 9. PARTNERING

TABLE OF CONTENTS CHAPTER 1. INTRODUCTION

Paragraph Paragraph Titles Numbers Applicability.......................................... 1 Contents of the handbook............................... 2 How to use the handbook................................ 3 Reference materials.................................... 4 Additional information................................. 5 Revisions.............................................. 6 CHAPTER 1. INTRODUCTION 1. Applicability . This handbook applies to all GSA personnel involved in the resolution of disputes. Alternative Dispute Resolution (ADR) is any procedure or combination of procedures voluntarily used to resolve issues in controversy as an alternative to litigation. Attorneys, contracting officers, and other GSA employees involved in resolving disputes concerning labor/management issues, personnel, contracts, construction, or other disagreements will find this handbook helpful. 2. Contents of the handbook . This handbook provides information on the ADR process including a general policy directive on the use of ADR, an explanation of the various techniques available for use, and guidelines on when ADR techniques should and should not be used. 3. How to use the handbook . This handbook is divided into nine chapters. A table of contents is provided at the beginning of each chapter for easy reference to all material. 4. Reference materials . The following is a partial listing of sources of additional information on ADR: a. Alternative Means of Dispute Resolution in the Administrative Process, subchapter IV, chapter 5 of Title 5 of the United States Code (U.S.C.); b. The Federal Acquisition Regulation (FAR), chapter 1 (part 33- Protests, Disputes and Appeals) of 48 CFR; c. The General Services Administration Acquisition Regulation (GSAR), chapter 5 of 48 CFR; and d. Government agencies, such as the Administrative Conference of the United States and the Federal Mediation and Conciliation Service, and other agency Dispute Resolution Specialists. 5. Additional information . Assistance and additional information on ADR may be obtained from assigned legal counsel. 6. Revisions . Comments on the handbook or GSA's ADR program should be directed to the Agency's General Counsel, who has been designated by the Administrator as the Agency's Dispute Resolution Specialist. TABLE OF CONTENTS CHAPTER 2. POLICY ON USE OF ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES Paragraph Paragraph Titles Numbers General..................................................... 1 Definitions................................................. 2 Statutory requirements...................................... 3 Objectives of ADR........................................... 4 Presidential policy on use of ADR techniques................ 5 GSA policy on use of ADR techniques......................... 6 Role of attorneys and nonattorneys in the process........... 7 Deciding when to use ADR techniques......................... 8 Selecting the appropriate ADR technique..................... 9

1. General .

a. Historically, Federal agencies have relied heavily on the court system for resolving disputes. However, the formality and complexity of the court system, as well as a staggering backlog of cases, have made it an ill-suited forum for an increasing number of these disputes. The administrative costs to file actions or defend suits are soaring, and the delay in receiving decisions is also significant. Perhaps most important, the court system's adversarial process is not conducive to long-term working relationships between or among the disputants. Disputes that culminate in litigation can do irreparable harm to ongoing or future relationships. In response to these disturbing developments, boards of appeals were established as an alternative to the courts to resolve contract disputes. Over time, these boards have become institutionalized and formalized in their procedures, to the point that they are now perceived as little different from the courts.

b. Recognizing the need for efficient and inexpensive ways of resolving disputes in which Federal agencies are a party, Congress enacted Public Law 101-552, the Administrative Dispute Resolution Act (the "Act"), on November 15, 1990. The Act promotes the use of ADR techniques by Federal agencies and provides them with the statutory authority to use means other than law suits to resolve disputes to improve the operation of the Government and better serve the public.

c. ADR is an informal process that allows disputing parties an opportunity to resolve their differences through mutually agreeable methods without litigation. The process used and decisions reached through ADR (except for decisions resulting from arbitration subject to judicial review) should not be made public, unless authorized in writing by the parties to the agreement. The parties should be aware, however, that the courts have not recognized a general exemption to the Freedom of Information Act (FOIA) to protect the confidentiality of information exchanged during the settlement negotiation process. Whether or not this information is subject to disclosure under FOIA will depend on the circumstances of each case.

d. In many cases, an ADR process can provide the parties an opportunity to reach a faster, less expensive, and more appropriate resolution of the dispute. The underlying premise is that the participants, sometimes aided by an impartial third party, or "neutral", are capable of resolving their own disputes.

2. Definitions .

a. "Alternative Dispute Resolution" is any procedure or combination of procedures voluntarily agreed to and used by the parties to the dispute to resolve issues in controversy to avoid resorting to litigation. The procedures include, but are not limited to, negotiation, facilitation, mediation, factfinding, mini-trial, arbitration, or any combination thereof, and a form of dispute avoidance or prevention known as partnering.

b. "Negotiation" is a process that allows the parties involved in a dispute to try to settle the dispute themselves. It may be either collaborative or adversarial and is the major ADR procedure. Almost all of the other ADR techniques in which the parties maintain control over the process are variations on this theme.

c. "Facilitation" is a process that involves a neutral who works with all of the parties at the same time, providing only procedural assistance regarding how to develop a mutually acceptable solution. This technique works best when the parties or issues are not polarized and there is enough trust for the parties to work together.

d. "Mediation" is an informal process in which a neutral helps others resolve their own dispute but does not, and ordinarily has no authority to, impose a solution. The mediator, like the facilitator, is a catalyst who makes primarily procedural suggestions, but may, unlike the facilitator, also suggest substantive ways for the parties to reach an agreement. Mediation is needed in situations where parties are unable to initiate discussions, have reached an impasse, or are otherwise unable to negotiate an agreement on their own.

e. "Factfinding" is a process that calls for the services of a neutral who is authorized by the parties to investigate the issues in dispute and asked to come up with either an assessment of the situation outlining all of the relevant issues and options, or a specific, non-binding, procedural or substantive recommendation regarding how the dispute might be settled. This report then becomes the basis for further negotiations between the parties.

f. "Mini-trial" is a nonbinding, structured form of negotiated settlement, where decision makers from opposing sides, who have authority to settle the issues in dispute, hear a detailed presentation of the facts and legal merits of each party's case. The assumption underlying this technique is that if the decision makers are fully informed as to the strengths and weaknesses of their respective cases, they will be better prepared to resolve their differences. The procedure is voluntary, expedited, nonjudicial, informal, and confidential.

g. "Arbitration" involves submitting the dispute to a neutral who decides the matter after reviewing the evidence and hearing arguments from the parties. The arbitrator's decision may be nonbinding, in that it is only a recommendation that the parties can take into account when negotiating a settlement or it may be binding. The Act authorizes agencies to arbitrate only if all parties give their consent and they follow the procedural safeguards outlined in 5 U.S.C. sections 575 - 580.

h. "Partnering" is a bilateral relationship between parties which draws on the strengths of each party in an effort to work cooperatively to achieve a jointly defined set of goals and objectives for a project. The objective is for the parties to transform their relationship from one that is adversarial to one that is cooperative, and thereby prevent disputes from arising in the first place. Unlike the other procedures described above, which do not come into play until a dispute has already arisen, partnering may represent the ultimate ADR technique since its aim is the prevention and avoidance of disputes.

3. Statutory requirements .

a. The Act requires each agency to:

(1) Adopt a policy on the use of ADR and case management (section 3(a));

(2) Appoint a senior official to be the agency's dispute resolution specialist (section 3(b));

(3) Provide ADR training on a regular basis (section 3(c)); and

(4) Review standard agreements for contracts, grants and other forms of assistance to determine whether to amend the agreements to authorize and encourage the use of ADR (section 3(d)(1)).

b.The Act requires the Federal Acquisition Regulation (FAR)to be amended to put the new legislation into effect (section 3 (d)(2)).

c. The Act also amends the United States Code as follows:

(1) Title 5 in the chapter on administrative procedures includes a new subchapter on the use of ADR techniques (section 4(b)). The new subchapter is entitled "Alternative Means of Dispute Resolution in the Administrative Process." It provides: definitions (section 571 of Title 5, chapter 5); statutory authorization allowing Federal agencies to use ADR (section 572); guidelines for the selection and use of neutrals (section 573); rules to protect the confidentiality of ADR proceedings (section 574); authorization and basic rules for the use of arbitration (sections 575 to 580); and authority for agencies to use support services for ADR proceedings (section 583);

(2) Section 556(c) of Title 5, encourages the use of ADR in administrative hearings (section 4(a));

(3) Section 10 of Title 9, authorizes judicial review of arbitration awards (section 5);

(4) Section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605), authorizes a contractor and a contracting officer to use ADR or other mutually agreeable procedures for resolving claims (section 6);

(5) Section 203 of the Labor Management Relations Act, 1947 (29 U.S.C. 173), authorizes the Federal Mediation and Conciliation Service to make its services available to Federal agencies to aid in the resolution of disputes using ADR (section 7);

(6) Section 2672 of Title 28, authorizes each Federal agency to use ADR to settle any tort claim against the United States, to the extent the Attorney General delegates to the agency head the authority to award, compromise, or settle such claim without the prior written approval of the Attorney General (section 8(a)); and

(7) Section 3711(a)(2) of Title 31, raises an agency head's claim compromise authority from $20,000 (excluding interest) to $100,000 (excluding interest), or such higher amount as the Attorney General may prescribe (section 8(b)).

4. Objectives of ADR . The goal of ADR is to increase the opportunity for relatively inexpensive and expeditious resolutions of issues in controversy. Objectives in support of this goal are to:

a. Identify issues of controversy that can be resolved at the earliest feasible point and the lowest appropriate level of responsibility through mutual agreement of the parties themselves;

b. Provide mechanisms that may be used to break negotiating impasse (typically, due to communication failure, strong emotions, or lack of technical expertise on disputed issues) by focusing on legal and practical strengths and weaknesses of the parties' positions; and

c. Supplement the win-lose adversarial process with a more participative, cooperative, problem-solving, win-win process that reconciles the competing interests of the parties.

5. Presidential policy on use of ADR techniques .

a. Executive Order 12988 of February 5, 1996, (which revoked and superceded EO 12778 of October 23, 1991) encourages agencies to settle civil disputes involving the Government before trial and, toward that end, to utilize ADR techniques where appropriate (section 1(c)).

b. The Order directs the parties to first attempt to resolve disputes through informal discussion, whenever possible, rather than through any formal or structured court proceeding (section 1(c)(1)).

c. The ADR provisions do not apply to certain asset forfeiture or debt collection cases (section 8(b)).

d. The Executive Order requires that, when possible, agencies that adjudicate administrative claims employ efficient case management procedures in administrative law proceedings (section 4).

6. GSA policy on use of ADR techniques . On July 30, 1992, the Administrator issued the Agency's ADR Policy Statement (GSA Notice ADM 732). This Policy Statement announced the Agency's support for the use of ADR in GSA's administrative programs.

7. Role of attorneys and nonattorneys in the process .

a. Attorneys . The most important role of attorneys in the ADR process is as creative problem-solvers. First, they must analyze the available information, identify relevant interests and issues, and assist their clients in formulating a strategy to achieve their needs and objectives. Attorneys must understand the advantages and disadvantages of each of the different alternatives and in what context they should be applied. Once an effective technique is agreed upon, they must be able to participate in the process. Their role varies depending upon the needs and objectives of the parties and the nature of the proceeding selected. They may either advise or represent parties or they may act as a neutral.

b. Nonattorneys . The goal of ADR is to provide a voluntary, informal, and expedited process for preventing or resolving disputes. Many ADR proceedings are sufficiently non-complex and informal that one need only be well-versed in the subject matter and procedures of the agency to represent or assist a party. In determining whether persons other than attorneys may provide representation or assistance during the ADR proceeding, the parties should focus on the particular functions to be performed and the particular skills, training, and experience needed to perform those functions effectively.

8. Deciding when to use ADR techniques .

a. Decisions to consider the use of ADR should be made by the appropriate GSA official authorized to settle the issue in controversy (e.g., contracting officers, managers, labor advisors, litigation attorneys, equal employment opportunity officers, etc.) after consulting with assigned legal counsel.

b. The parties may make the decision to use ADR before or after a dispute arises. If the parties decide that ADR is preferable to litigation, they should agree upon the procedure for resolution.

c. In determining when to use ADR, agency personnel should evaluate the following elements:

(1) Existence of an issue in controversy;

(2) A voluntary choice by both parties to participate in the ADR process;

(3) An agreement by the parties on the ADR technique(s) to be used instead of litigation; and

(4) Participation in the process by officials who represent the parties and have the authority to resolve the issue in controversy.

d. Additional considerations in assessing the use of ADR in a dispute include:

(1) Whether there is a negotiation impasse;

(2) Whether it is in the best interests of each party to break the impasse; and

(3) The uncertainty (and unpredictability) of the outcome in litigation, litigation costs, and the time required for a decision to be rendered.

e. The Government should consider not using ADR techniques for dispute resolution if:

(1) Resolution of the matter is required to establish an authoritative precedent;

(2) The matter involves or bears upon important questions of Government policy, since a resolution reached through ADR procedures normally will bypass normal levels of agency review and consultation;

(3) Maintaining an established policy or precedent and minimizing variations among individual decisions in a particular subject area is of special importance;

(4) The matter significantly affects persons or organizations that are not parties to the proceeding;

(5) A full public record is required, and the ADR proceeding cannot provide such a record;

(6) GSA must maintain continuing jurisdiction over the matter with authority to alter the disposition of the dispute if circumstances change, and an ADR proceeding would interfere with GSA's ability to fulfill that requirement; or

(7) The case involves a willful or criminal violation of law.

f. Subpart 33.2 (48 CFR 33.214) of the Federal Acquisition Regulation (FAR) prescribes policies and procedures for the use of ADR by contracting officers to resolve issues in controversy subject to the Contract Disputes Act of 1978 (41 U.S.C. 601-613), as amended by the Administrative Disputes Resolution Act (Pub. L. 104-320). The procedures apply to the settlement of claims or portions of claims any time the contracting officer has authority to settle the issue in controversy. The ADR techniques may be utilized before or after the issuance of a contracting officer's final decision. When ADR procedures are used after a contracting officer's final decision, their use does not alter any of the requirements for filing appeals of the decision. If the ADR procedure is successful, the appeal will be settled and removed from the docket.

9. Selecting the appropriate ADR technique .

a. A key consideration in selecting an ADR technique is whether it should be binding or nonbinding. Another important decision is whether to involve the services of a neutral third party. Both parties must agree on the technique to be used to resolve a dispute.

(1) Binding techniques (e.g., arbitration) may be appropriate where:

(a) The parties recognize that they are not likely to negotiate settlement of a dispute, even when assisted by a neutral;

(b) In-court litigation will likely take longer and be more expensive than arbitration; or

(c) Advantages exist to a binding proceeding that is private and presided over by a neutral decision maker, chosen by the parties, with expertise in the subject matter of the dispute.

(2) Nonbinding techniques (e.g., facilitation, fact-finding, mediation, mini-trial, negotiation or combinations thereof) may be appropriate where:

(a) The parties have attempted to negotiate a settlement themselves, but are at an impasse; or

(b) The assistance of a neutral to filter communications and encourage joint problem-solving is likely to break the impasse.

b. The parties may agree to select a neutral to facilitate resolving the controversial issue(s) using procedures chosen by the parties. A "neutral" is an impartial third party, who is acceptable for the parties to a dispute resolution proceeding. A neutral serves as a facilitator, mediator, fact finder, or arbitrator, or otherwise functions to assist the parties to resolve the controversy. A neutral person must have no official, financial, or personal conflict of interest with respect to the issue(s) in controversy, unless such interest is fully disclosed in writing to all parties and all parties agree that the neutral person may serve pursuant to 5 U.S.C. § 573. Possible sources of neutrals and guidance on how their services may be obtained is contained in the following chapters of this handbook.

c. The role of the neutral in the ADR process may include:

(1) Assisting the parties in starting the process, identifying and evaluating ADR options, facilitating negotiation of procedural details, and keeping the process going;

(2) Facilitating negotiation of a settlement by serving as an intermediary to communicate the parties' positions and helping to clarify the parties' objectives for resolution of a dispute;

(3) Leading the parties toward substantive resolution of the dispute by suggesting appropriate compromises and providing impartial, nonbinding opinions on the merits of the parties' positions; or

(4) Rendering a decision, if the ADR technique agreed to by the parties is arbitration.

d. The costs for obtaining the services of a neutral will generally be borne equally by the parties.

TABLE OF CONTENTS

Paragraph Paragraph Titles Numbers General................................................ 1 Description of process................................. 2 Criteria for use....................................... 3 CHAPTER 3. NEGOTIATION

a. Negotiation is a voluntary process using communication between/among disputing parties to reach mutual agreement. Negotiation is the most fundamental ADR technique available to resolve issues in controversy. It is used so routinely that it is often overlooked as an alternative means of resolving disputes.

b. Negotiators often view negotiation as a competition, with each party seeking to maximize its own gain at the expense of the other party. As an ADR technique, negotiation is a means to resolve disputes informally at the level that they arise, using a cooperative process.

2. Description of process .

a. Although rather informal and unstructured, a typical negotiation can be broken into a series of stages. During the initial stage, each party presents its credentials and verifies its authority to settle or recommend settlement. The negotiators may have limited authority to enter into agreement (e.g., personnel actions, contractual matters, or policy). It is recommended that persons having the necessary authority to approve agreements should participate in the discussions.

b. Generally, each party has different interests. The next stage involves identifying and understanding each party's priorities and interests. If necessary, supporting data may be elicited to clearly define issues in dispute.

c. Once the issues in controversy are identified and narrowed, the parties develop a strategy for resolving them. Each party reviews the relevant facts, assesses its positions, establishes objectives/goals, and identifies concessions/options that can offer opportunities to reach agreement. By fully understanding the issues in controversy and each party's position and priorities, it may be possible to develop trade-offs for high priority and lesser priority interests. Proposals are exchanged to find common ground and opportunities for settlement.

d. The final stage of negotiations, closing the gap, may involve private discussions between the principal negotiators. Minor issues are often resolved at the negotiating table, while major issues may require ratification and approval at a management level.

3. Criteria for use .

a. Negotiation is the most fundamental ADR technique. Many of the other procedures developed to resolve disputes are actually ways to further negotiated settlements. Negotiations should be used at the earliest opportunity after the dispute arises and at the lowest appropriate management level. Key elements in the process include:

(1) Voluntary election by the parties;

(2) Use of a nonbinding process;

(3) A preference for informal and unstructured processes that are private;

(4) The presentation of evidence that is usually indirect or limited;

(5) A mutually acceptable agreement is sought; and

(6) An emphasis on the parties' relationship.

b. Negotiation may be used to resolve personnel, contractual, or policy issues/disputes.

c. After a dispute arises, parties typically attempt to negotiate a settlement of the dispute. Sometimes, parties reach an impasse due to anger or hostility, disagreement as to the facts, or lost credibility/trust. At that point, parties may negotiate and agree to another ADR technique in an attempt to break the impasse, and thus resolve the dispute without litigation.

a. Facilitation involves providing procedural assistance to disputing parties to resolve issues in controversy. It involves using an intermediary to enable the parties to work together to resolve disputes. The actions of the facilitator are designed to improve communication, encourage informal discussion, improve relationships, and build trust. The objective is to create a climate in which the parties may more easily reach a mutually agreeable settlement.

b. The facilitator is a neutral third party who assists the parties in resolving their differences themselves. Generally, the facilitator conducts meetings and coordinates discussions. Although a facilitator may perform some of the same functions as a mediator, the facilitator generally does not become as involved in the substantive issues as does a mediator. Instead, the facilitator works to create a problem-solving atmosphere for the parties.

a. Facilitation can take any number of forms as the facilitator works to bring the disputing parties together and enables them to move toward agreement. The neutral's primary role is to facilitate communication. A facilitator can help the parties achieve a substantive resolution by:

(1) Ensuring that all parties are given an opportunity to express their positions and opinions and that each party understands the position and objectives of the other parties;

(2) Ensuring that the discussions remain relevant and confidential, if necessary;

(3) Guiding the parties to full participation within a constructive, cooperative, problem-solving environment; and

(4) Offering suggestions on alternatives or proposed solutions which might assist in resolution of the dispute.

b. As previously noted, there are some similarities between mediation and facilitation, and a facilitator may actually engage in a degree of mediation. However, facilitators generally remain on the periphery of the substantive issues and encourage the parties themselves to resolve their differences in the least contentious manner. The mediator is more likely to explore the substantive issues in detail and takes a more participatory role.

a. Facilitation is likely to prove most effective when:

(1) The parties or issues are not polarized;

(2) Communication is the problem, possibly due to personality conflicts;

(3) The parties trust each other enough to develop a mutually acceptable solution;

(4) Confidentiality is desired; and

(5) The parties contemplate an on-going relationship after settlement of the dispute.

b. Employing a facilitator before disputes arise may prove beneficial in the case of complex contracts. Facilitators may become involved before the contract work begins. In such instances, the facilitator might lead a meeting to cover common interests, communication channels, potential areas of dispute, and procedures for the settlement of such disputes as they arise. The meetings, like the usual facilitation process, are designed to create an atmosphere conducive to problem-solving. When used in this manner, facilitation is similar to partnering, but not as formalized and, therefore, more readily adaptable to lesser-value projects and/or contracts.

4. Sources for facilitators .

a. It may be appropriate for the facilitator to have special knowledge of the subject matter of the dispute, but that is not always required. Sources might include personnel from the Federal Government, professional associations, and/or private sector consultants.

b. Assistance in locating a facilitator may be obtained by contacting the GSA General Counsel, a designee, or an assigned legal counsel.

TABLE OF CONTENTS CHAPTER 5. MEDIATION

Paragraph Paragraph Titles Numbers General.............................................. 1 Description of process............................... 2 Criteria for use..................................... 3 Sources for mediators................................ 4

1. General . Mediation is a technique which involves assistance from a neutral third party to aid the parties in negotiating an agreement. The mediator must be acceptable to both parties but has no authority beyond that bestowed by the parties and no power to render a decision. Mediators help the parties initiate new discussions or reopen stalled negotiations once they have reached an impasse. They are catalysts, with no vested interest in the outcome, whose objective is to improve communications between the parties by asking open-ended questions, translating or clarifying issues or positions, and evaluating the parties' priorities to move them toward agreement.

a. Mediation involves the procedural assistance of a neutral third party (mediator) jointly selected by the disputants. The mediator meets with the parties, together or separately, as needed, in order to move them toward agreement. The mediator may be able to help the negotiations progress toward settlement in a number of ways. The mediator may act as a discussion leader to ensure that all parties have ample opportunity to be heard, or if negotiators are locked into a position and are unable to hear the other side's arguments, the mediator may act as a "translator" to improve communication and break the impasse. The role is similar to that of a facilitator. The mediator may focus on each party's underlying interests and can work with the parties to devise creative solutions to satisfy their needs. Mediation offers the parties a cooperative environment in which to fashion their own settlement agreement.

b. Experience has shown that the most efficient trade-offs are likely to follow the free and open exchange of information. In some disputes, the parties may not trust one another. Their lack of trust or fear of appearing weak or excessively eager to settle may prevent them from revealing their true interests or "bottom line" to one another. In these situations, the mediator attempts to gain the trust of the parties so that they can discuss confidentially with the mediator their priorities, their options, and their alternatives to agreement. This is all critical information that they may be unwilling to share with the other party directly. The mediator may use the information to identify potential areas of agreement and then help the parties to settle the remaining issues.

c. Mediation usually contains the following stages:

(1) The parties agree to mediate the dispute;

(2) The parties choose a mediator;

(3) The parties, with or without the participation of the mediator, establish the role and authority of the mediator;

(4) The mediator gathers information on the dispute, including facts, circumstances, and disputed issues. The parties' positions and priorities are solicited, and an agenda is established;

(5) Throughout the following stages, the mediator manages the interaction between the parties. The mediator meets separately with the parties to discuss their positions and to explore settlement possibilities confidentially. In these meetings, the mediator gathers information and elicits sensitive points that might not surface in a joint session;

(6) Joint sessions, led by the mediator, are usually the next stage. Joint sessions allow the parties to hear directly the other side's version of the dispute, and help identify the areas of agreement and disagreement. Joint sessions also foster open communication between the parties, enhance possibilities for settling the dispute, and engender a positive future relationship;

(7) The mediator formulates possible options for settlement and compares them with the parties' positions and goals, seeking areas of agreement; and

(8) The mediator presents the alternatives to the parties, leads discussions, and works toward a compromise. If full or partial agreement is reached, the mediator helps the parties develop a plan for its implementation. If it becomes apparent that the parties are at a total impasse, with no hope of further movement toward agreement, the mediator recommends that the parties terminate the mediation and may suggest another, more formal, process for resolving the dispute.

a. In mediation, the parties voluntarily agree to use a neutral party to help formulate a resolution to the dispute. The mediator is not a decision maker, but instead tries to bring about a negotiated settlement by encouraging open communication between the parties, by serving as a communication link if necessary, by working to provide a balanced process, and by moving both parties toward a mutually agreeable resolution of the dispute.

b. The most important criteria for determining the appropriateness of mediation is the parties' willingness to participate in the process. Mediation should be considered when:

(1) The parties are unable to initiate negotiations or have engaged in negotiations and have reached an impasse;

(2) The parties can voluntarily agree to select a third-party neutral mediator to assist in seeking agreement through this nonbinding, informal, private process;

(3) There are psychological barriers to negotiating a resolution;

(4) Maintaining a working relationship is important to the parties;

(5) A matter of legal principle is not involved and the parties do not want to create a legal precedent; and

(6) The parties believe that they have some flexibility in their positions and a negotiated settlement with the assistance of a mediator is preferable to a judicially imposed decision.

c. Mediation is inappropriate when:

(1) One or more of the parties is acting in bad faith;

(2) Information necessary for a fair and informed settlement is being withheld or distorted;

(3) One or more of the parties want their "day in court"; or

(4) A legal precedent is needed.

4. Sources for mediators . The Federal Mediation and Conciliation Service (FMCS) is an independent agency of the Federal Government. The FMCS has trained mediators in field offices located across the country. In addition, the Administrative Conference of the United States, the Society for Professionals in Dispute Resolution, the American Arbitration Association, the American Bar Association, state bar associations, and professional trade associations all maintain rosters of professional mediators. These organizations can be contacted through the GSA General Counsel or a designee.

TABLE OF CONTENTS CHAPTER 6. FACTFINDING

Paragraph Paragraph Titles Numbers General.................................................. 1 Description of process................................... 2 Criteria for use......................................... 3 Sources for factfinders.................................. 4 CHAPTER 6. FACTFINDING

a. Fact-finding is a process designed to reduce or eliminate conflict over the "facts" at issue in a case. Disputes sometimes arise when insufficient or inaccurate information causes parties to take positions that they might not otherwise take. Fact-finding may help parties who disagree on the facts to accelerate dispute resolution by utilizing the informed analysis and advice of a neutral expert(s) on the subject matter in dispute.

b. The rationale behind this procedure is the expectation that the opinion of a trusted and impartial neutral will carry great weight with the disputing parties.

a. The process begins with the selection of an impartial and acceptable third party, the fact finder, who has specialized technical expertise in the subject matter at issue. The fact finder is authorized to investigate the issue(s) in dispute, review pertinent data and information, and develop an independent factual analysis of the situation. The findings are then reported to the parties. This report may contain either an objective assessment of the situation or a specific, non-binding procedural or substantive recommendation as to how the dispute might be settled, or both. The report can then be used by the parties as the basis for further negotiations.

b. Fact-finding may be either binding or advisory, as agreed by the parties at the outset of the process. The process is designed by the parties and is often utilized as a preliminary/preparatory step for other methods of ADR (such as mediation or arbitration). If the fact-finding is binding, which is to say that the agency would be bound to implement the factual determinations arising from the fact-finding without the exercise of the agency's discretion, then the procedure would be deemed to be an equivalent technique to binding arbitration and the procedural safeguards set forth in sections 575-580 of the Act would apply. These procedural safeguards are discussed in greater detail in chs. 8-1(c) and 8-2(h).

a. Fact-finding may be appropriate for resolving disputes involving technical issues or interpretation of facts when the parties:

(1) Voluntarily agree to its use;

(2) Mutually select a third party neutral(s) with technical expertise in the disputed area;

(3) Choose an informal and private process that may influence the result or settlement; and

(4) Desire a reliable factual determination in the form of a report or expert testimony.

b. Even if the recommendations of the fact finder are not accepted, there are still benefits to be gained from this process since the data will be collected and organized in a way as to be readily usable in other dispute resolution procedures.

c. Fact-finding is not an appropriate ADR technique for resolving policy issues.

4. Sources for fact finders .

a. The fact finder may be an individual or group with technical expertise in the subject matter of the dispute. The fact finder must have no personal interest in the outcome of the dispute. Sources might include personnel from the Federal Government, professional associations, and/or private sector consultants.

b. Assistance in locating a fact finder may be obtained by contacting the GSA General Counsel or a designee or assigned legal counsel.

a. Mini-trial is a structured settlement process in which attorneys for each side make summary presentations of their case before senior officials of each party who are authorized to negotiate a settlement. A neutral advisor sometimes presides over the proceeding and, if asked to do so, renders an advisory opinion. Following these presentations, the officials seek to negotiate a settlement, with or without the assistance of the neutral.

b. The assumption underlying this process is that if the decision-makers themselves are fully informed as to the merits of their respective cases, they will be prepared to engage in meaningful settlement discussions. The mini-trial serves to abbreviate the usual dispute process by putting the decision-making responsibility back in the hands of senior managers.

a. Each party selects a representative, usually a senior manager or other person with authority to settle the dispute, who has had little or no prior involvement in the dispute.

b. The parties select a mutually acceptable neutral to preside over the proceeding.

c. The parties then negotiate the procedural rules. Since this process is typically invoked after discovery has commenced, the parties must agree on guidelines for conducting any additional discovery, the introduction of evidence and the examination of witnesses. The formal rules of evidence and procedure generally do not apply and the parties have great latitude in structuring the presentation of their case.

d. Each party selects a spokesperson, usually an attorney, who presents their best assessment of their case to the designated management representatives. The representatives and the neutral may ask questions throughout the presentation of the case.

e. After these presentations, the representatives of each party attempt to negotiate a settlement based upon the information presented. These negotiations are generally conducted one-on-one, without the assistance of advisors or attorneys. The neutral may play an active role in the discussions, and if requested to do so, may render an advisory opinion concerning the merits of the claim. This opinion is usually in terms of a settlement range, rather than a specific solution, since representatives are the only persons vested with the authority to settle the dispute.

f. If the parties are able to negotiate a settlement, their agreements are documented. If the parties are still at an impasse, or otherwise unable to resolve all of the outstanding issues, they can pursue an adjudicated resolution in court or use another ADR process.

a. Mini-trials are likely to be appropriate when:

(1) The parties can voluntarily agree to its use;

(2) The dispute is at a stage where substantial additional litigation expenses, such as discovery expenses or expenses for retaining expert witnesses, are anticipated;

(3) The issue in controversy is significant enough to justify the senior executive's time required to participate in the process;

(4) The issues involved include mixed questions of law and fact. If the dispute relates solely to the law, a mini-trial would not be appropriate; and

(5) The matter involves materials that the Government or other party believes should be kept confidential.

b. Mini-trials are not appropriate when:

(1) A legal precedent needs to be established;

(2) Major questions of public policy are involved;

(3) Witness credibility is of critical importance;

(4) The amount in controversy is not significant enough to justify the senior executive's participation; or

(5) The only alternative is to declare one side or the other completely correct. Since mini-trials are essentially a negotiation process, it is unreasonable to think that you can negotiate an agreement in which either side completely abandons its position.

c. The determination to use the mini-trial format must be coordinated with the GSA General Counsel or a designee and the assigned legal counsel.

TABLE OF CONTENTS CHAPTER 8. ARBITRATION

Paragraph Paragraph Titles Numbers General................................................. 1 Description of process.................................. 2 Criteria for use........................................ 3 Sources for arbitrators................................. 4 CHAPTER 8. ARBITRATION

a. Arbitration is the form of ADR that most closely resembles litigation. It is the process whereby a neutral third party decides the submitted issue after reviewing all the evidence and hearing argument from the parties.

b . Section 4 of the Act, which amends chapter 5 of Title 5 of the United States Code, authorizes government agencies to use arbitration whenever all the parties consent. Sections 575-580 outline the procedures to be followed when the Government is one of the parties to the dispute. These procedures may range from those that are highly formal, virtually indistinguishable from court proceedings, to those that are fairly informal and individually tailored.

c. The Act authorizes agencies to arbitrate issues so long as they meet certain criteria to ensure that the arbitration award withstands constitutional scrutiny. The Act authorizes agencies to agree to arbitration, but provides that the award does not become final until 30 days after it is served on all parties. After 30 days, the award becomes final and enforceable on all parties to the proceeding. If an agency is a party to an arbitration proceeding, it may extend the 30 day period for an additional 30 days by serving a notice of the extension on all parties.

d. Arbitrations in the labor relations area are excluded from the coverage of this chapter. Existing agreements between GSA and the labor unions govern the circumstances when arbitration may be used and how the arbitrators will be selected in this context.

a. Arbitration is an inherently flexible procedure where the parties to the dispute voluntarily agree to draft rules, establish schedules, and select the arbitrator to conduct the proceedings. The parties determine the standard(s) of proof and design a mutually acceptable informal process.

b. The first step in the process is to determine, by mutual agreement, that arbitration is the most suitable ADR technique.

c. The parties then negotiate an agreement governing the procedures to be followed during the proceedings.

d. The parties then select an arbitrator or an arbitration panel.

e. The next step is an exchange of relevant information between the parties, in preparation for the hearing.

f. An arbitration hearing is then held, at which time all parties present their facts and positions to the arbitrator. Normally, the format is rather informal. The formal rules of evidence do not apply and objections to testimony or materials are generally not permitted. Witnesses are permitted to testify in the narrative and may be cross-examined. The arbitrator is also free to ask questions of the witnesses. Transcripts of the proceedings are generally not made. The key point is that the parties have considerable latitude and flexibility in structuring their presentations to the arbitrator.

g. Section 579 requires the arbitrator to make the award within 30 days after the close of the hearing, or the date of the filing of any briefs authorized by the arbitrator, whichever date is later, unless the parties agree to some other time limit, or the agency provides by rule for some other time limit.

h. Section 580 provides standards for the issuance and finalization of arbitration awards. The arbitration award becomes final 30 days after it is served on the parties, unless the agency, which is a party to the proceeding, extends this 30-day period for an additional 30 days.

a. Arbitration is likely to be appropriate where:

(1) The benefits from the procedure outweigh the probable delay and costs expected to be incurred in a court proceeding;

(2) Settlement turns on the specific facts of the case and the dispute can be resolved by reference to a clearly articulated statute, precedent or rule, or the parties wish the arbitrator to resolve the dispute using principles of equity and fairness;

(3) The matter to be resolved is not intended to have any precedential effect other than for the specific controversy at hand;

(4) Having an arbitrator with technical expertise will facilitate resolution of the matter; and

(5) The parties desire privacy, and a public record of the proceedings is not required.

b. The same conditions previously discussed in ch. 2-8(e), that make ADR inappropriate also apply to the use of arbitration. In general, arbitration is not likely to be appropriate where:

(1) A precedent needs to be established;

(2) Maintaining established norms or policies is important, since in an arbitration the parties can decide what standard the arbitrator will apply as a basis for the decision;

(3) The case significantly affects persons who are not parties to the proceeding;

(4) A full public record of the proceedings is either important or required; or

(5) The case involves interpreting or implementing significant Government policies.

4. Sources for arbitrators .

a. A listing of arbitrators, possessing the technical expertise desired by the parties, may be obtained from, among other sources, the Administrative Conference of the United States, the American Arbitration Association, the American Bar Association, state or local bar associations, professional trade associations, or the Society for Professionals in Dispute Resolution.

b. Assistance in identifying arbitrators can be obtained from the GSA General Counsel or a designee or the assigned legal counsel.

Paragraph Paragraph Titles Numbers General................................................... 1

Description of process.................................... 2 Criteria for use.......................................... 3 CHAPTER 9. PARTNERING

1. General . a. Partnering is the process by which contracting parties are encouraged to change from their traditional adversarial relationships to a more cooperative, team-based approach to prevent disputes from arising in the first place. By taking steps at the outset of a project to change the adversarial posturing, to recognize common interests, and to establish an atmosphere of trust and frankness in communications, partnering helps develop a cooperative management team. b. While the partnering principle can apply to any working relationship, it is most commonly used in large construction projects. This is because these projects typically present management with formidable challenges. Each party, the owner/agency and the contractor, generally has its own management team and its own set of project goals and priorities. This fosters an adversarial relationship and inhibits the free flow of information. With communication strained, project delays, cost overruns, disputes, and litigation are possible. c. Partnering creates an owner/contractor relationship based on cooperation and achieving mutually beneficial, jointly defined goals and objectives. It is the product of a change in attitude among the parties rather than a formal contract. By drawing on the strengths of each organization, the parties seek to avoid disputes, improve communication, promote quality and efficiency, and improve long-term relationships. 2. Description of process . a. Although the partnering process must be tailored to each specific project, it is flexible and may include the following steps: (1) A commitment early in the acquisition process to use partnering. Contractors should be advised from the outset that the Government proposes to use partnering; (2) A personal commitment from top management that is reinforced as needed; (3) Selection of a "sponsor" or "project manager" to initiate, nurture, and maintain coordination of the process; (4) Establishment of a "partnering team" comprised of management, engineering, procurement, and technical personnel from each organization. The size of the team will depend on the complexity of the project; however, the team should be as small as possible to aid team building and teamwork; (5) Selection of a facilitator (not a technical or management member of the team) who is skilled in team building and group dynamics, with no vested interest in the decisions reached by the parties, to focus on building a cooperative relationship among the team members; (6) Scheduling and conducting an initial workshop (3-5 days) away from the workplace to foster group dynamics and establish the tone for the working relationship; (7) Drafting of a joint mission statement, or charter, that contains detailed common goals and objectives; (8) Identification of specific processes designed to forestall conflict, evaluate progress and performance and promote cooperation; and (9) Scheduling and conducting follow-up workshops (1-2 days) periodically to reinforce team building skills and assess progress of the partnership towards established goals and objectives. b. The facilitator selected by the parties may be an individual or a group hired by the partnering team on a cost-sharing basis with no change in the contract price. c. Less complex projects may be facilitated by the project manager or partnering team to reduce the partnership costs. 3. Criteria for use . a. Generally, partnering requires up-front commitments and costs associated with formation of a partnership. Partnering is probably best suited for projects which are large, complex, sensitive, or have substantial risk associated with timely completion. The parties' willing acceptance of the partnership concept and their commitment to open communications are critical to success. Personal commitment by the management and staff of each partner will ensure the greatest chance of success. b. Determining which projects are appropriate for partnering requires reasoned and informed judgment. Consideration must be given to risk and costs associated with alternatives. Participation in the partnering process is voluntary. However, the agency's intention to encourage partnering at the outset of a project can be mentioned in the project's contract documents. The provision would emphasize the voluntary nature of partnering, but would also state the Government's intention to invite the successful contractor to participate in a partnering workshop after award of the contract. In other cases, for instance those where communication between the contractor and the Government has broken down and the project is suffering, the decision to pursue partnering could be made during the course of contract administration. In either event, selection of a project for partnering is a management decision, but one which should be coordinated with the GSA General Counsel or a designee or assigned legal counsel. c. To effectuate partnering, the Government will encourage the formation of a cohesive partnership with the contractor and its subcontractors. This partnership will, through the joint efforts of the parties, identify project goals, and will be structured to best utilize the strengths of each organization to achieve those goals. The objectives are effective and efficient contract performance, allowing project completion within budget, on schedule, and in accordance with plans and specifications. The partnership will be bilateral in makeup, and participation will be voluntary. Costs associated with effectuating this partnership will be agreed upon by both parties, and will be shared equally with no change in contract price. d. To implement this partnership initiative, it is anticipated that within 60 days of the issuance of the Notice to Proceed, the contractor's on-site project manager and GSA's project engineer and contracting officer's representative would attend a 1-week partnership development seminar. Typically, a 3 to 4-day off-site team building workshop would follow for a manageable group of each organization's participants who are integral to the success of the project. Generally, anyone who has input or decision making authority would be invited to attend. The size and complexity of the project will determine the actual number and specialties of the participants at the workshop. At a minimum, the senior on-site representative from the CQM, the construction contractor, major construction subcontractors (i.e., mechanical and electrical), and the GSA site engineer, plus the contracting officer's representative and an appropriate management official from each organization should attend the workshop. The team-building workshop would culminate in the development and establishment of mutually acceptable goals and objectives for the project, beneficial to both the contractor and the Government. e. Follow-up workshops of 1 to 2 days' duration would be held periodically throughout the period of the contract, as agreed to by the contractor and the GSA representatives. The follow-up sessions would be utilized to assess performance, measure goal achievement, and reinforce partnering principles. (The workshops described above could be organized by a facilitation consultant.) f. If deemed necessary, the consultant could be hired under the terms of existing Construction Manager contracts, with the contractor's share of costs going directly to the consultant. The cost of the partnership development seminar and team building workshops would be equally shared by GSA and the contractor, and would be proportionate to the size and complexity of the project. g. Partnering can be universally applied to all construction contracts in varying degrees of concentrated efforts, but it is probably most appropriate for those large-scale construction projects where the owner and contractor represent two distinct management groups with separate sets of objectives and operating procedures. Rather than competing as adversaries throughout the life of the project, partnering offers the opportunity to foster teamwork within a cooperative relationship that creates mutual trust and respect for one another's roles in the construction process, and recognizes the risks inherent with those roles.

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5 Negotiation Strategies for Resolving a Dispute

By Nessim Malak

Updated on January 8, 2019 Reading time: 5 minutes

This article meets our strict editorial principles. Our lawyers, experienced writers and legally trained editorial team put every effort into ensuring the information published on our website is accurate. We encourage you to seek independent legal advice. Learn more .

When to Use Negotiation

Key takeaways.

Often when a dispute occurs, each party blames the other and the matter goes to court . This often severely damages a profitable relationship. However, this does not always need to occur. You can prevent the matter from escalating by undertaking meaningful negotiations with the other party to come to a result that you are both happy with. This article will explain when negotiation is appropriate and five strategies to ensure that everyone walks away with what they want.

Negotiation is the process of two parties coming together to reach an agreement over a problem, where both sides generally need to adjust their views and positions to achieve a solution.

You should always try to negotiate as a first step, particularly when:

you wish to maintain the business relationship with the other party;
there is a possibility that both you and the other party can walk away with what you want ;
you and the other party have similar bargaining power , meaning one of you doesn’t have a strong influence over the other;
you don’t want to spend thousands of dollars on fees associated with court litigation ; and
most importantly, you want to resolve the dispute as quickly as possible , allowing you to continue running your business.

However, negotiation is not always appropriate, particularly when the:

dispute is complex and involves many legal issues; or
other party has shown that they are acting unreasonably .

To get the most out of the negotiation process, you should keep the following strategies and tips in mind.

1. Consider Interests and Values Separately

When starting the negotiating process, you should always try to separate the person from the problem and tackle the issue in isolation. It is also useful to walk into a negotiation knowing what alternatives you have. A term for this concept is your BATNA (best alternative to a negotiated agreement). Your BATNA is the option you will take if you and the other party cannot reach an agreement. The better your BATNA, the better your bargaining power.

You should also think about the other party’s:

primary issues , wants and needs; and

This will help you develop your negotiation strategy and leverage your position, particularly if their BATNA is not as good as yours.

2. Avoid Aggressive Actions and Use Open Dialogue

When disputes arise, emotions can run high. One of the most important aspects of negotiation is to avoid being provoked into an emotional response. Regardless of how aggressive or unreasonable the other party may be, you must put aside your feelings and focus on the facts at hand to keep the dialogue open. This will help bring the dispute to a faster settlement.

It is also a good idea to avoid making threats or provocative moves, such as saying “we’ll take the matter to court” or try to ruin the other party’s business reputation. Such threats will only result in the other party responding in the same way, escalating the situation and making the conflict worse.

Open dialogue is also an effective tool to build a better relationship and establish a common cause. This dialogue can help you and the other party understand each others’ interests and values.

3. Appeal to Overarching Values

Disputes over money often involve deeper causes of conflict, such as a feeling of being disrespected or overlooked. The next time you find yourself arguing over money, it is a good idea to suggest putting the conversation on hold. You should then take the time to listen closely to each others’ complaints and try to come up with creative ways to address them.

For instance, if both of you would likely suffer damage to your reputation if your dispute went public, then you may agree to keep certain aspects of your dispute resolution process confidential. Reaching an agreement on some of the minor aspects of the dispute can help you build a foundation of trust and optimism that helps you to work together to resolve the main source of your conflict.

4. Confront Your Differences Directly

The areas where you and the other party disagree are opportunities to create a solution that meets some or all of their interests in a new, creative, and tailored settlement. Addressing your differences will not only create an agreement that suits both of you but can also help preserve or even enhance your relationship once you have reached an agreement.

5. Reach Closure

Once you reach an agreement, it is important that you record the terms in a carefully drafted Deed of Settlement and Release or Settlement Agreement . Your deed or agreement should capture the precise terms that you reached, leaving no room for further disagreement. Make sure that you understand exactly what you are agreeing to before executing any deed or agreement. It is extremely important that you only agree to a settlement that you can keep. There is no point agreeing to make a payment by a certain date and then lack the necessary funds.

It is a good idea to remember that the issue could be a simple misunderstanding. There may be facts or background issues that you do not know about, so it often useful to negotiate with the other party before taking any serious action. When negotiating, you should always bear in mind each others’ interests and values and work to coming to a settlement that is beneficial for all.

If you would like to understand your legal position before negotiating or would like assistance with a dispute you have, call LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.

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Conflict management, problem solving and decision making are topics that are generally considered to be distinct, but are actually interconnected such that they are used together to come up with the most feasible solution.

To come to the best possible outcome of a problem on the basis of sufficient information, certain problem solving steps need to be used. Some of these are as follows:

Scrutinizing the problem
Outlining the issue; solutions depends on the way it is outlined
Detecting the main reasons which allowed the problem to occur
Identifying the series of techniques to apply, and their outcomes
Produce alternative options through processes such as brainstorming, discussions between groups and other discrete processes
Choosing the simplest method that resolves the root cause
Implementing the chosen method
Monitoring and reviewing the execution

The flaw with this process is that it assumes there exists an ideal outcome, the information is available to reach this outcome, and the people taking part in the process are acting rationally. Unfortunately, this situation is extremely unusual.

Read More: What is Project Management? Definition, Types & Examples

Another flaw is the emotions of people involved in decision making. The core focus of conflict management is to reduce the effect of people’s emotions and make them think rationally. The typical solution choices are:

Forcing/Directing – A method whereby a superior with autonomous power has a right to force the decision
Smoothing/Accommodating – Negotiating the matter and trying to settle down the dispute
Compromising/Reconciling – A give and take approach where each side surrenders something in order to come to a solution. The extent of dispute limits the generation of options.
Problem-solving/Collaborating – Refers to collective decision making to come up with a solution that is conventional
Avoiding/Withdrawing/Accepting – A method which may not settle the dispute but allows time to calm the emotions

Any of these approaches can be used for conflict management depending on the nature of conflict, although there primary focus is to control the level of the dispute. But, in due course, the underlying problems of the conflict need to be solved in its entirety .

To make the right decision, availability of sufficient and precise data needs to be present. Some decisions are not as simple, and data about them is not easily available.

The problems you can face range from simple to wicked problems.

Wicked Problems are the kind of problems that continuously alter and demand the participant’s complexity and emotions. An iterative approach is best for these kinds of problems, as decision to every step simplifies the problem.
In Dilemmas, you have to choose the solution which is the least worse as there is no right answer to these problems, but choosing a solution is always better than not making a decision.
Conundrums are complicated questions that have speculative or hypothetical answers.
Puzzles and mysteries need superlative judgment in certain circumstances. Lack of time to contract these decisions to simple problems is a constraint in this approach, although you can apply processes to a point.
Problems require hard work to be solved. Carefully and properly designed execution of problem solving processes can show the best outcomes.

In order to come to the best possible conclusion, an understanding and balance of the following points is essential:

Characteristics of problem at hand
Emotion and conflict of stakeholders
Features of different type of decisions
Pick up the single best decision using your best judgement in given circumstances

The core of all the above is choosing & implementing the best decision, followed by a continuous review of the decision, making changes as quickly as possible, and providing a feedback.

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An Introduction To Early Dispute Resolution Methods

problem solving process used to settle a dispute

Early Dispute Resolution or "EDR" is a comprehensive process for fairly and rapidly settling disputes. Most EDR methodologies build on collaborative practices that facilitate cooperation to view the dispute as a joint problem-solving endeavor. The goal of Early Dispute Resolution is to obtain value maximizing outcomes through an efficient and fair process.

There are several different methods that can be involved in EDR. Some of the various methods are discussed below:

Negotiation

Negotiation refers to a strategic discussion, or series of discussions, to resolve an issue in a way that all parties find acceptable. In a negotiation, each party tries to persuade the other to agree with their point of view. But it is a mistake to do this before first listening and understanding the vantage point of the other party.

Negotiation skills include the ability to communicate, actively listen, control emotions, manage expectation, develop patience, be adaptable, be persuasive, make a plan, have integrity, build rapport, problem solve, and make decisions.

Participants in a negotiation should try to learn as much as possible about the other party’s interests, and the facts they are relying on, before a negotiation begins. Preparation, including understanding the strengths and weaknesses on each side, is vital. Participants should meet early in the life of a dispute to explore settlement.

Mediation is essentially a negotiation facilitated by a neutral third party to resolve a dispute between parties. Mediation is generally a short-term, structured, task-oriented, “hands-on” approach to negotiating a settlement between the parties.

The mediator facilitates the resolution of the parties’ dispute by supervising the exchange of information and the bargaining process. The mediator helps the parties find common ground and deal with unrealistic expectations. The mediator may offer creative solutions and assist in drafting a final settlement document.

The role of the mediator is to interpret concerns, relay information between the parties, frame issues, and define the problems. The mediator remains neutral throughout the process. The mediator does not decide the outcome; the outcome is determined by the parties themselves.

Conciliation

Like mediation, conciliation is a voluntary, flexible, and confidential process. The parties seek to amicably settle their dispute with the assistance of the conciliator, who acts as a neutral third party. Conciliation is a preventive method to resolve conflict and it often works best as soon as a misunderstanding or dispute takes place. Parties bring in a conciliator to stop conflicts from escalating.

The conciliator will serve as a neutral third-party who plays the role of an authority figure. The main difference between conciliation and mediation proceedings is that, at some point during the conciliation, the conciliator will be asked by the parties to provide them with a non-binding settlement proposal. A mediator, by contrast, will in most cases and as a matter of principle, refrain from making such a proposal.

Conciliation allows the parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties' legal positions, but also their commercial, financial and/or personal interests. Like mediation proceedings, however, the ultimate decision to agree on the settlement remains with the parties.

Collaborative Law

Collaborative law is a newer type of alternative dispute resolution that mainly arises in divorce and family law. Each party hires a lawyer, and along with other professionals such as financial experts or divorce coaches the parties meet to negotiate a settlement that best meets the specific needs of the parties and their children without the underlying threat of litigation. Collaborative law removes from the dispute the adversarial setting of a courtroom and instead brings in a problem-solving atmosphere of negotiations.

The voluntary process is initiated when the couple signs a contract (a "participation agreement") binding each other to the process and disqualifying their respective lawyers right to represent either one in any future family-related litigation. If a party threatens a lawsuit, the collaborative law process terminates, and the lawyers cannot participate any further in the dispute.

Early Neutral Evaluation

Early Neutral Evaluation (‘ENE’) is a flexible way to resolve business disputes without the parties needing to resort to full-scale litigation or arbitration. Like other alternative dispute resolution methods, one of the main reasons you may wish to engage with the ENE process is with a view to saving time and money.

The parties in dispute appoint an independent evaluator to assess the strengths and weaknesses of each side’s case. This neutral, expert viewpoint is then intended to form a starting point for negotiations to settle the disagreement.

The evaluator does not decide legal issues or advocate a way of resolving matters and ENE does not result in a final decision. Instead, by indicating what the parties might realistically be able to rely on if full-blown litigation took place, the evaluator provides a valuable incentive for an agreement to be reached.

The ENE process is usually non-binding on the parties. It is also carried out on a without prejudice basis, which means that anything disclosed during the ENE process can’t later be used as evidence in court without agreement. ENE has become a popular and useful way for businesses in a dispute to get a practical view of the merits of their respective positions without spending large amounts of money on litigation.

Facilitation

Facilitation is the act of engaging participants in creating, discovering, and applying learning insights. Facilitation usually involves a “guide on the side” who asks questions, moderates discussions, introduces activities, and helps participants learn. Facilitation is the process of moving two factions with different points of view toward an amenable resolution.

Facilitation can help a group improve how they work together, identify and solve problems, make decisions, and handle conflict. The role of the facilitator is to guide the group to work together more efficiently by creating synergy, generating new ideas, and arriving at consensus and agreement.

Facilitators will often set ground rules, such as: (1) facilitating the discussions so that each side has an opportunity to verbalize their conflict points, (2) point out any possibility of resolution, and (3) keep the discussion on track and not allow it to migrate into other issues.

The role of a facilitator is not to solve the problem, but to help the involved parties solve their own problem.

An organizational ombuds is an individual who serves as a designated neutral within a specific organization and provides conflict resolution and problem-solving services to members of the organization (internal ombuds) and/or for clients or customers of the organization (external ombuds). There are organizational ombuds in all sectors (corporate, academic, governmental, non-governmental, non-profit, etc.). Some may serve both internal and external constituencies.

An organizational ombuds provides confidential, informal, independent and impartial assistance to individuals through dispute resolution and problem-solving methods such as conflict coaching, mediation, facilitation, and shuttle diplomacy. The organizational ombuds responds to concerns and disputes brought forward by visitors to the office and may convey trends, systemic problems, and organizational issues to high-level leaders and executives in a confidential manner. Ombuds do not advocate for individuals, groups or entities, but rather for the principles of fairness and equity.

Because of the informal, neutral, confidential and independent positioning of an ombuds in an organization, they typically do not participate in investigations, play any role in formal issue resolution, produce any finding or make binding decisions, institute corrective measures, create policies, create or maintain records, or form any type of formal relationship (i.e. attorney-client).

Dispute Review Boards

Dispute Review Boards (DRB) are used where disputes can delay and significantly increase the costs of a project. Unlike mediation or arbitration, the DRB is convened at the very beginning of the project and conducts regular meetings and visits to the project site throughout the duration of the project.

DRB is a board of impartial professionals selected by both parties at the beginning of the project to follow progress, encourage dispute avoidance, and assist in the resolution of disputes for the duration of the project. The DRB provides a mechanism to help projects to predict and handle potential problems before they occur, to provide advisory opinions on questionable or disputed matters, and to provide an alternate dispute resolution process to settle any disputes that cannot be settled between the parties to the contract.

If the DRB is empowered with the ability to render final and binding decisions upon the parties to the project, the project is virtually guaranteed to continue with a minimum amount of lost time and money that would normally be encountered when litigation is required to resolve disputes.

American Bar Association Adopts Resolution 500 Urging the Increased Informed and Voluntary Use of Early Dispute Resolution

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WORLD TRADE ORGANIZATION

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flow chart of the dispute settlement process

DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 6

The process Stages in a typical WTO dispute settlement case

This chapter explains all the various stages through which a dispute can pass in the (WTO) dispute settlement system. There are two main ways to settle a dispute once a complaint has been filed in the WTO : (i) the parties find a mutually agreed solution, particularly during the phase of bilateral consultations; and (ii) through adjudication, including the subsequent implementation of the panel and Appellate Body reports, which are binding upon the parties once adopted by the DSB . There are three main stages to the WTO dispute settlement process: (i) consultations between the parties; (ii) adjudication by panels and, if applicable, by the Appellate Body; and (iii) the implementation of the ruling, which includes the possibility of countermeasures in the event of failure by the losing party to implement the ruling.

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6.1 Flow chart of the Dispute Settlement Process

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Five Ways to Keep Disputes Out of Court

John R. Allison

There are few things managers dread more than litigation. Even petty cases have a way of damaging relationships, tarnishing reputations, and eating up enormous sums of money, time, and talent. Most managers know that lawsuits are steadily increasing. Smart managers know that they are also increasingly avoidable. There are now many alternatives to litigation that can nip lawsuits in the bud, resolve long-standing disputes, and even produce win-win solutions to old and bitter fights that would otherwise only leave both sides damaged.

JA John R. Allison is the Spence Centennial Professor in Business Administration and professor of business law at the Graduate School of Business, University of Texas at Austin. He is also a commercial arbitrator for the American Arbitration Association.

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Strata disputes

Issues between strata owners or residents can happen from time to time. They can also happen between owners/residents and the owners corporation.

If you are not able to resolve issues, there are steps you can follow.

Last updated: 25 July 2023

If you have an issue with a strata manager or building manager , find out what you can do.

Key information

The steps to follow will depend on whether your issue is with another resident, or with the owners corporation, or with your strata manager or building manager.
Always try to resolve a dispute by speaking to the other person or people first
There is a free mediation service offered by NSW Fair Trading
Going to the NSW Civil and Administrative Tribunal is a last resort.

How to resolve a dispute

If the issue is between residents, owners, or the owner corporation, there are four general steps to resolving it:

Talk about it
Speak to the owners corporation
Use Fair Trading's mediation service
Go to the NSW Civil and Administrative Tribunal .

1. Talk about it

Most issues can be resolved by talking it out with the other party. Often, the other party is not aware of how something is impacting you.

If your issue is with another resident or owner , for example your neighbour’s dog is howling or i f someone is smoking and it drifts into your property , try telling them so they are aware it is bothering you. Be clear about the outcome you would like and give them an opportunity to fix the problem.

If your issue is with the owners corporation and relates to the management of the strata scheme , tell your strata manager or the strata committee about your issue and what you would like the owners corporation to do about it.

If you’re a strata committee member and the issue is between the owners corporation and a resident or owner , use your strata scheme’s own internal dispute resolution process (if there is one). This might include talking to the resident/owner or sending a warning letter before taking formal action such as issuing a notice to comply or applying for mediation. See examples of common issues and how to talk it out .

Make an enquiry with NSW Fair Trading using the 'Real estate, property management and strata' form.

2. Contact the owners corporation

Issues with another resident or owner.

If speaking with the owner or resident doesn't resolve it, contact the owners corporation.

The owners corporation might decide to:

speak to them on your behalf,
issue a warning letter or a notice to comply, or
apply for mediation.

Issues with the owners corporation

If your issue is not resolved by speaking with the strata manager or the strata committee, you can ask for a 'motion' about your issue to be added to the agenda of a meeting.

This means that a vote can be taken on the issue and a formal decision made.

If the motion is lost or the owners corporation refuses to hold a meeting, you can apply for mediation to try and resolve your issue.

See strata meetings for more information on the process to get your issue added to the next agenda.

A 'notice to comply' is a written warning that asks a person to stop breaking by-laws.

It must be written using the correct form.

A copy of the by-law being broken must be given to the person along with the notice.

The owners corporation may allow the strata committee or strata manager to give notices. If this is the case, a notice to comply can be given without holding a general meeting.

If an owner or resident continues to breach a by-law after the notice to comply is given, the owners corporation can:

ask for an order from the Tribunal telling the person to pay a penalty.
apply for mediation with the resident who is breaching the by-law. If that does not resolve the issue, the owners corporation can then apply to the Tribunal for a compliance order.

3. Use Fair Trading's mediation service

If you still aren’t able to solve the issue, many disputes are eligible for mediation through NSW Fair Trading.

Mediation is free and you can apply online .

Fair Trading’s mediation service is only available for disputes governed by strata law, which means if the Tribunal can make an order about the issue, Fair Trading is able to offer you mediation.

Download the Tribunal's fact sheet before lodging a mediation application.

For example, Fair Trading cannot offer mediation if you are seeking an apology or to evict a tenant.

Examples of the types of matters that are suitable for mediation include:

repairs and maintenance, water damage, renovations to common property
air conditioners
meeting procedures, including validity of meetings and decisions
by-laws, finances and insurance
noise, parking, pets and nuisance smoke
fire safety.

Mediation brings both sides together to talk about the issue and help them to try and reach an agreed settlement. Mediators are neutral and don’t take sides.

Only the owners corporation (not an individual) can apply for mediation if the issue is about:

an agreement (contract) with a building or strata manager
a neighbouring scheme.

Mediation is compulsory for most strata disputes before lodging an application with the Tribunal. However some disputes bypass the mediation process and need to be heard directly by the Tribunal. These include:

compulsory appointment of a strata manager (also called a managing agent)
allocation of unit entitlements
access to a lot by the owners corporation to inspect or repair common property
inspection of strata records.

This list doesn't cover everything so contact Fair Trading if you're unsure whether your issue is suitable for mediation.

How to ask for mediation

Submit a request using the online application form . It only takes about 15 minutes to complete.

You will get an email confirming your application has been received. You will also be given a case number which you should keep somewhere safe.

You can also visit Service NSW and apply in person.

Fair Trading invites the other party to the mediation via email. If an email address is not available, an invitation is sent in the mail. The invitation asks the other party to tell Fair Trading if they accept or decline the request for mediation and sets a tentative mediation date. If the other party accepts, the mediation is confirmed and booked in. If they decline, you then have the option to apply for an order at the Tribunal

Who attends the session?

Ideally, all people involved in the issue should participate in the session. If you want to bring a solicitor, everyone must agree to this beforehand.

If an interpreter is needed, the mediator will arrange this for you.

What happens during the mediation

The mediator will contact each party on the telephone numbers provided and link all the calls together. Each party then gets an opportunity to briefly describe the dispute and say what they are hoping to achieve from mediation.

The mediator will then help the parties identify options and negotiate a possible settlement.

If an agreed settlement is reached, the mediator helps write it out.

Come prepared

Have all relevant information at hand and think about what you want to say beforehand.

You don’t need to have legal advice to attend mediation, but you can if want to.

If the issue is not resolved by mediation, you then have the option to apply for an order at the Tribunal.

Resolving disputes quickly means you can return to your regular routine without worrying about going through a legal process, which can take months.

4. Tribunal hearings

Hopefully, a solution can be found before needing the NSW Civil and Administrative Tribunal, such as talking it out with the other person or through mediation. Once you apply to the Tribunal, your dispute becomes a legal matter and the decision will be legally binding.

Going to the Tribunal is a last resort. Try to talk it out with the other person first. Mediation is also often a compulsory first step.

How to apply

To apply to the Tribunal, you need to complete a form and pay a fee.

Fill out the 'Strata and community scheme application form' on the Tribunal's website .

Costs can vary. See Tribunal fees for details.

The Tribunal can only make certain types of orders, so check what orders the Tribunal can make before you apply.

If one person has refused mediation, or if mediation isn’t appropriate for the issue, the Tribunal may agree to hear the matter. Once you submit the form, the Tribunal will give a copy of your application to the owners corporation. By law, the owners corporation must then give a copy of your application to all other owners in the strata scheme and put a copy on the noticeboard (if there is one).

Hearings over the phone are possible in some circumstances.

How to present my case

Most people represent themselves, but in some cases this can be done by someone else, such as a friend or family member, or lawyer. You must give your written permission for someone else to attend for you. If you would like a lawyer, you will need to get permission from the Tribunal first. For more information about the process, visit the Tribunal’s strata page .

When will the Tribunal make a decision?

Decisions usually take at least six weeks once everyone has finished giving their evidence.

Decisions can take longer, depending on the circumstances.

If the matter is urgent (for example, you are facing financial problems), you might be able to get an urgent hearing. Check what the Tribunal classifies as an urgent issue.

For more information visit the Tribunal website for details on process.

Examples of common issues and how to talk it out

If a resident is parking in your spot or their car is blocking a driveway, you should talk to the owner of the car.

If you don’t know who owns the car, you may wish to leave a note on their windshield and tell the strata manager or the owners corporation.

If it’s not a resident’s car, you might want to think about asking the owners corporation to add an item to the agenda of the next general meeting to discuss solutions.

This could include signage, barriers or a security system.

You have the right to live peacefully in your home.

If you’re having an issue with noise, the first step is to try to find out where it’s coming from.

If you can find out who is making the noise, you should have a conversation with them.

If you don’t know where the noise is coming from or talking to the resident doesn’t solve the issue, speak to the strata manager or owners corporation.

They may be able to investigate and issue a Notice to Comply if the noise is in breach of the by-laws.

If your neighbour has a dog who is constantly barking or a cat that’s destroying your garden, the first step is to check the by-laws. Look for by-laws about pets, noise, or damage to property.

If the issue is not a breach of by-laws, a friendly conversation with the owner will usually resolve the issue.

If there appears to be a breach of the by-laws or the issue isn't resolved, you should report it to the strata manager or the owners corporation.

If you think a resident is leaving rubbish where they shouldn’t be, or it’s interfering with your right to enjoy your property, you should first check the by-laws for rules about rubbish.

Next, talk to the resident to see if you can solve the issue.

If that doesn’t fix the issue, you can raise it with your strata manager or the owners corporation.

If someone is smoking and it drifts into your property, try talking to them to ask them to stop.

If not, check your by-laws to see what the rules are about smoking or smoke drift.

If the person is in breach of the by-laws, you can contact the owners corporation who can issue a notice to comply if they don’t stop.

Even if there is no specific by-law, the smoker cannot cause a nuisance or hazard to others.

Breaking other by-laws

If you notice any other by-laws being broken, you should first speak to the person and ask them to stop.

If the behaviour is harmful or dangerous (for example, reckless driving on a shared driveway), you should report it straight away.

If a person continues to break a by-law, report it to the strata manager or owners corporation. They can take steps to solve the issue.

Learn more about rules for living in strata .

Rental problems

If you are renting in strata, it is best for the tenant and landlord or agent to try to resolve any issues between themselves. Here are some basic steps to follow:

Carefully read the terms of the rental agreement
Talk through the issues with all parties involved
Put in writing any agreement that you reach on how to resolve the issue.

If you can’t agree on how to fix the problem, you can use Fair Trading’s free tenancy and real estate complaint service . This service is for NSW tenants, landlords and agents.

Need more help?

Contact fair trading.

If you have any further questions about strata, you can contact Fair Trading via phone or in-person at a Service NSW centre.

Related information

Popular pages.

Image of cars parked in an underground carpark

If you own a car, check whether your lot includes a parking space and how you are allowed to use that space.

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Understand the strata by-laws where you live, how to change them, and what to do if there's a breach of the by-laws in your strata scheme.

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Who's who in strata

Understand the roles of the owners corporation and strata committee, strata manager and building manager.

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Understand if you can own a pet, and what to do if there's a problem.

Helpful links

Apply to Fair Trading for strata mediation
Apply to NCAT (the Tribunal) to resolve a strata dispute
Find out more about your rights when buying products in NSW.

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Three Questions to Ask About the Dispute Resolution Process

What a negotiator needs to know about the dispute resolution process.

By PON Staff — on April 18th, 2024 / Dispute Resolution

Dispute resolution is often a multistep process that can start with negotiation , move on to mediation, and, if necessary, end in arbitration or litigation.

This progression allows parties to start off, quite naturally, with less-expensive, less-formal procedures before making bigger commitments of money and time.

Still, there may be situations in which you wonder if it would be better to sue first and then aim for a settlement , rather than starting with a more collegial process.

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Discover how to improve your dispute resolution skills in this free report, Dispute Resolution: Working Together Toward Conflict Resolution on the Job and at Home , from Harvard Law School.

How should you decide which dispute resolution process to choose? In a chapter in The Handbook of Dispute Resolution (Jossey-Bass, 2005), Frank E. A. Sander and Lukasz Rozdeiczer advise you to choose the right dispute resolution method by answering the following three questions about the case you’re facing.

QUESTION 1: “What are my goals?”

Simply knowing what you want to get out of the process can help you decide where to start. Begin by prioritizing your goals.

For example, Carla wants to hash out a custody agreement with her husband as quickly and inexpensively as possible.

Because she wants to make sure they both abide by the agreement, she wants them to decide the final outcome together.

It seems clear that, given Carla’s goals, mediation is the best choice for her dispute. Mediation is typically faster and cheaper than arbitration or litigation, and mediation also gives parties the greatest degree of control over the final outcome.

By contrast, Jack, who feels he is the victim of age discrimination by his former employer, has the primary goal of winning a large financial settlement. Thus, for him it may be wise to start with arbitration.

If he also wants to set a legal precedent that could benefit others in his situation, he might turn to litigation instead.

In both instances, he would do well to listen closely to his attorney’s assessment of his odds of winning the case and a large settlement. What if you and the other party can’t agree on your goals?

Sander and Rozdeiczer advise you to start off with mediation, as it is a safe, non-binding procedure for both sides.

QUESTION 2: “Which process will capitalize on the best features of the dispute?”

Every dispute has features that can help you reach a beneficial outcome, write Sander and Rozdeiczer.

Which process will best trigger the strengths of the case?

The authors have identified a number of dispute features that lend themselves well to mediation: a good relationship between parties and their attorneys, opportunities for creative problem solving, the willingness of one or both sides to apologize for any mistakes or wrongdoing, eagerness to settle quickly, and the presence of multiple issues that might lead to tradeoffs.

If your dispute has one or more of these characteristics, mediation may be the best choice for you.

By contrast, if you would benefit from formal protections, such as enforcement of key decisions, then arbitration or litigation might be a more fitting option. Suppose that Company A believes Company B is guilty of infringing on one of its patents.

Even if mediation resulted in Company B’s agreeing to stop manufacturing the product in question, Company A might not have confidence that Company B would abide by the decision. Because it believes it has a strong case, Company A decides to bypass mediation and go straight to arbitration.

QUESTION 3: “Which process will best overcome barriers to resolution?”

As you try to answer this final question, Sander and Rozdeiczer advise you to keep in mind that both sides to a dispute often prefer a settlement to an arbitrator, judge, or jury’s binding win-lose decision.

Thus, it helps to focus on the ability of the three different dispute resolution methods to help you overcome barriers to settlement.

In particular, when parties are having trouble communicating and have a strong desire to air their feelings, mediation is often the best choice.

When more than two parties are involved in a dispute, such as grandparents or other relatives in the case of a custody dispute, mediation might also be optimal, as it allows multiple parties to become involved.

However, when parties have different opinions regarding the law affecting their case, a judge or arbitrator’s expertise ultimately may be needed.

When in doubt, mediate. In sum, the low-risk, relatively low-cost nature of mediation makes it the “go-to” dispute-resolution process.

Mediation allows negotiators to work together toward maximizing their outcomes under the guidance of an expert, rather than handing over their dilemma for someone else to resolve on their behalf.

Mediation can also be a beneficial choice when negotiators need to work with each other in the future.

If a mediator is unable to help you and the other side reach agreement, you may still need to turn to litigation or arbitration , but you will do so with a better understanding of your case and the issues at stake.

Do you find these questions helpful in determining your dispute resolution process?

Adapted from “Trying to resolve a dispute? Choose the right process,” in the August 2009 issue of Negotiation .

Originally published in 2014.

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COMMENTS

What is Conflict Resolution, and How Does It Work?
In conflict resolution, you can and should draw on the same principles of collaborative negotiation that you use in dealmaking. For example, you should aim to explore the interests underlying parties' positions, such as a desire to resolve a dispute without attracting negative publicity or to repair a damaged business relationship.
Choose the Right Dispute Resolution Process
Litigation. The most familiar type of dispute resolution, civil litigation typically involves a defendant facing off against a plaintiff before either a judge or a judge and jury. The judge or the jury is responsible for weighing the evidence and making a ruling. Information conveyed in hearings and trials usually enters the public record.
Dispute Resolution Processes
Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments. Arbitration is different from mediation because the neutral arbitrator has the authority to make a decision about the dispute. The arbitration process is similar to ...
Dispute Resolution Overview
Dispute resolution is a term that refers to a number of processes that can be used to resolve a conflict, dispute or claim. Dispute resolution may also be referred to as alternative dispute resolution, appropriate dispute resolution, or ADR for short. Dispute resolution processes are alternatives to having a court (state or federal judge or ...
Methods for Resolving Conflicts and Disputes
Definition: Arbitration is the submission of a disputed matter to an impartial person (the arbitrator) for decision. The Process: Arbitration is typically an out-of-court method for resolving a dispute. The arbitrator controls the process, listens to both sides and makes a decision. Like a trial, only one side will prevail.
Negotiation and dispute resolution
Leaders negotiate all the time, both inside and outside their organizations. Externally, they deal with customers, suppliers, investors and other stakeholders. Internally they negotiate for resources, schedules and support. Thus, the ability to negotiate and to resolve disputes is a fundamental skill that every leader needs to master.
PDF Conflict Resolution Education
settle disputes peacefully in a variety of settings. A joint project of the U.S. Department of Justice and the U.S. Department of Education, this Guide provides background information on conflict resolution education; an overview of four widely used, promising, and effective approaches; and guidance on how to initiate and
Resolving Disputes: Mediation, Arbitration, or Litigation?
Mediation: Collaborative Problem Solving. Mediation is a voluntary, non-binding process wherein an impartial mediator helps parties involved in a dispute reach a mutually acceptable agreement. This process enables the disputing parties to maintain control over the outcome and actively participate in creating a solution that meets their needs.
Using Alternative Dispute Resolution Techniques
The mini-trial serves to abbreviate the usual dispute process by putting the decision-making responsibility back in the hands of senior managers. 2. Description of process. a. Each party selects a representative, usually a senior manager or other person with authority to settle the dispute, who has had little or no prior involvement in the ...
5 Negotiation Strategies for Resolving a Dispute
1. Consider Interests and Values Separately. When starting the negotiating process, you should always try to separate the person from the problem and tackle the issue in isolation. It is also useful to walk into a negotiation knowing what alternatives you have.
Conflict Management, Problem Solving and Decision Making
To come to the best possible outcome of a problem on the basis of sufficient information, certain problem solving steps need to be used. Some of these are as follows: Scrutinizing the problem; Outlining the issue; solutions depends on the way it is outlined; Detecting the main reasons which allowed the problem to occur
Four Conflict Negotiation Strategies for Resolving Value-Based Disputes
In these value-based disputes, there are four practical steps that negotiators can take to tone down particularly contentious negotiations, and help talks move forward in a constructive manner. Here are four conflict negotiation strategies for resolving values-based disputes: Consider interests and values separately: Separate the person from the problem and engage issues individually at the ...
Using Arbitration To Resolve Legal Disputes
Arbitration is a form of alternative dispute resolution (ADR). It provides an alternative to civil court lawsuits and trials, the traditional method for resolving legal disputes. There's been an increase in the use of ADR techniques to resolve disputes due to concerns about: Court congestion and delays. Rising litigation costs.
CONFLICT MANAGEMENT Flashcards
Terms in this set (13) arbitration. when a third party is consulted to make a final decision in resolving a conflict. compromise. give up something to resolve a conflict. conflict. disagreement. conflict resolution. problem-solving process used to settle a dispute.
An Introduction To Early Dispute Resolution Methods
Early Dispute Resolution or "EDR" is a comprehensive process for fairly and rapidly settling disputes. Most EDR methodologies build on collaborative practices that facilitate cooperation to view the dispute as a joint problem-solving endeavor. The goal of Early Dispute Resolution is to obtain value maximizing outcomes through an efficient and ...
Resolving disputes
Solving disputes through negotiation is a part of everyday life. For instance, in a situation where your teenager asks you for the car keys, after some discussion you reach an agreement on conditions for using the car and when to return home. ... Either way, the mediator cannot force you to settle the dispute or to accept a particular solution ...
PDF International Dispute Settlement: Principles and Concepts
1.1 The Peaceful Settlement of Disputes International dispute settlement has long been viewed through the lens of the question of whether international law and international relations require a compulsory method to settle disputes, a question which is inex-tricably linked to the idea that dispute settlement is necessary to avoid recourse to war ...
The process
There are three main stages to the WTO dispute settlement process: (i) consultations between the parties; (ii) adjudication by panels and, if applicable, by the Appellate Body; and (iii) the implementation of the ruling, which includes the possibility of countermeasures in the event of failure by the losing party to implement the ruling. ...
Five Ways to Keep Disputes Out of Court
Five Ways to Keep Disputes Out of Court. by. John R. Allison. From the Magazine (January-February 1990) Share. Save. There are few things managers dread more than litigation. Even petty cases ...
Mediation and the Conflict Resolution Process
Depending on the context of a dispute, mediation may be a more appropriate way to resolve conflict. By PON Staff — on March 14th, 2024 / Conflict Resolution. It's often the case that when two people or organizations try to resolve a dispute by determining who is right, they get stuck. That's why so many disputes end up in court.
PDF Guided Choice Dispute Resolution Processes: Reducing the Time and
on diagnosis and the resulting settlement process can substantially reduce the time spent later on negotiations. All in all, jointly focusing on process issues early on in the process typically leads to substantial savings. Guided Choice emphasises the efficient use of the time and often reduces the time associated with traditional mediations.
Strata disputes
Each party then gets an opportunity to briefly describe the dispute and say what they are hoping to achieve from mediation. The mediator will then help the parties identify options and negotiate a possible settlement. If an agreed settlement is reached, the mediator helps write it out. Come prepared
Three Questions to Ask About the Dispute Resolution Process
The authors have identified a number of dispute features that lend themselves well to mediation: a good relationship between parties and their attorneys, opportunities for creative problem solving, the willingness of one or both sides to apologize for any mistakes or wrongdoing, eagerness to settle quickly, and the presence of multiple issues ...