Appropriate Dispute
Resolution
The
term appropriate dispute resolution was chosen by the Alberta Energy
Utilities Board to reflect that when faced with a problem the disputants
have a number of options or choices by which to resolve the dispute.
Those options are more particularly described and set forth as follows.
1. Negotiation
Negotiation is a process whereby parties exchange ideas with the
intent of changing or creating a legal relationship. One of the
key ingredients to a good negotiation is to be prepared. In any
negotiation there were will always be divergent interests or needs.
The goal of negotiation is to find common mutual goals in order
to facilitate an agreement. When preparing for negotiation, identify
what are the problem(s) in a neutral manner. By neutral, set out
an agenda and identify problems without pre-supposing a solution.
Having set forth an agenda try and identify the your concerns, hope,
expectations, priorities, needs and assumptions and those of your
company’s, as well as, those of your counterpart and his or
her company.
2. Mediation
Mediation is more of a consensual process. Mediation is a relatively
informal process that allows the disputants to explore the reason
for their dispute in a confidential manner. Through mediation, a
third party neutral will assist parties in resolving a dispute.
Generally, a mediator but does not have the power to impose a solution.
The solution is developed by the disputants once they have a better
understanding of the reasons behind the dispute or why the other
disputant has that position. The mediator will help the disputants
identify their concerns, hope, expectations, assumptions, priorities,
needs, values and beliefs. Typically, mediation results in the disputants
having a better understanding of the other disputants’ perspective
in respect of the problem(s). Any solution that is reached by the
disputants can be made binding through the execution of a formal
agreement. Once the formal agreement is executed it becomes binding
and enforceable in accordance with its terms like any other contract.
The percentage of disputes resolved in small claims court following
an interest based mediation is 70-75%.
When attending a mediation, the mediator will describe the mediation
process, the mediator’s role, the appropriate manner of communicating,
the parties authority to settle and discuss confidentiality. The
next phase of the process will involve the identification of the
issues or "what" is the agenda that the parties wish to
discuss or to resolve. The next phase involves the exploration of
the reasons- the "why" behind the dispute. The mediator
will explore the concerns, hopes, expectations, assumptions, priorities
or preferences, belief, fears, values, and needs of the each of
the respective individuals and their respective companies so that
the parties understand what is motivating them, as well. Once the
reasons are addressed the parties will develop a variety of solutions
without applying any analysis. Once a number of solutions are developed
they will be evaluated against the reasons behind the problem to
ascertain which solution best meets the needs all the disputants.
By uncovering these reasons it should be possible to develop a more
creative solution (the "how") that meets the respective
needs or interests of the respective parties.
3. Arbitration
Arbitration is a process whereby the disputants agree to submit
their dispute to a neutral third party whom they have selected to
make a decision in order to resolve the dispute. The arbitrator’s
decision can either be unbinding or binding. Arbitration is usually
less formal than the judicial process but invloves rules for proceeding
.
What are the rules for arbitration may vary from arbitration to
arbitration. Insofar as what are appropriate rules of arbitration,
there are a number of choices- from the ADR Institute of Canada,
Inc. ICC Rules of Arbitration, AAA International Arbitration Rules,
and UNCIPRAL Arbitration Rules. This list is by no means exhaustive.
When considering arbitration, or drafting an arbitration clause,
it is recommended that the following matters be considered- the
number of arbitrators, the place of arbitration, the laws that the
arbitrator is to apply, the specific training or experience that
the arbitrator must have, the rights of appeal, if any and costs
of the arbitration. The Arbitration Act of the respective province
to which the dispute is being resolved may be referred to add support
to the procedural rules.
4. Litigation or Adjudication
This is a formal process conducting by a judge or jury in a court
of law is subject to rules of court. Decisions are reached based
on legal precedent. |
