Other forms of alternative dispute resolution

Mediation is only one form of dispute resolution that are "alternatives" to litigation through the courts. It helps to have some knowledge of others.

The first two forms of dispute resolution within the scope of any formal proceedings.

The first is to avoid, which is a strategy deliberately chosen in response to a perceived conflict. This strategy can be called: "Get out of Dodge City." There's nothing wrong out of Dodge City, facing a stronger opponent, not a prize worth fighting for, the fear of something worse, or any other number of reasons. People routinely, and often significantly, to retaliate by simply ignoring it.

At the other end of the scale of extra-judicial processes, is self-help. Self-help is an action taken by a person designed to affect a resolution of a problem. Self-help includes murder, although not all forms of self-help are illegal. Murder is an effective means to resolve conflicts by disposing of his opponent, but suffers from drawbacks: (1) For most people, there is a moral objections: a murder is against the Ten Commandments - "Come ^ your not kill. " (2) Murder is illegal, and the consequences of getting caught can ruin more than one full day. (3) Although there is no organized legal system, is a debilitating consequence to kill: often results in a blood feud. Such feuds can last from generation to generation, and infect a whole society. Other less drastic forms of self-help may include protesting, striking, theft, and so on.

Both avoidance and self-help share in common that are unilateral and disorganized. All other forms are more or less organized, and are bilateral or multilateral.

Straddling the border between organized and unorganized systems are the negotiations. Negotiation is by far the most common method used in all societies of dispute resolution. Most negotiations take place outside of any formal procedure. Indeed, people constantly engage in negotiations on a daily basis, because the way they surf all day. When a conflict becomes serious enough to involve other people in the area moves from disorganized to organized settlement of disputes, and many people retain lawyers or other negotiators to do their trading on their behalf.

If negotiations prove fruitless in terms of compromising the resolution, then the parties may simply walk away from the deal. Or, if you can not, can seek arbitration, which is a recognized form of alternative dispute resolution, and is very often given legal sanction, which means that arbitration awards can be enforced in a court of law.

In arbitration, the parties have made the decision that they want to avoid two characteristics of a judicial process. The first is the great expense of litigation, the second is the public nature of litigation. Arbitration is private, and a decision by an arbitrator between the parties that the arbitration itself. In general, arbitration is much more affordable than a fully contested case. Parties to arbitration even have the luxury to choose an arbitrator of their choice, rather than accept any judge, the judicial system provides them. Moreover, in a contested case, all parties must comply with the timetable established by the court, and the court system see the convenience of the judges rather than the convenience of the parties, while in arbitration, the parties may adjust the schedule with the referee according to your needs and preferences.

However, the odds for arbitration with the court system a key feature. The parties to the arbitration are not free to craft their own solution to the problem. Instead, they have already agreed that the arbitrator's decision will be binding on all parties. In this sense, arbitration is exactly the same as a trial by judge or jury, which also contains the function that the parties are bound by the decision, and that the decision usually result in a winner and a loser.

The arbitration procedure may be part of a contested case. For example, in California, an effort initiated by the judges to reduce the size of its records of judgments, the cause may be ordered to arbitration, to be heard by an arbitrator in the court's list of arbitrators volunteers, with standards set by the court for the conduct of arbitration. However, since there is a constitutional right to proceed to trial by judge or jury, the rules provide that if a party is not going to respect the decision of the arbitrator in a court adjacent to proceed, then either party may refuse to accept The results of the arbitrator, and instead proceed to trial asking what is called a "trial de novo", which means a test ", as if the arbitration had not taken place. Because of the" "function de novo, the Arbitration is widely perceived by litigants as a waste of time, only to jump over an obstacle on the way to trial court, and for this reason, this court annexed arbitration are significantly decreased in popularity, some way rather than the growth in court-annexed mediation .

The vast majority of arbitrations are contractual, coming about because of a prior agreement between parties to allow a third party, the arbitrator, to resolve the dispute between them. The courts are in favor of contractual agreements to arbitration and the courts generally support arbitration awards. A risk that the parties take when choosing an arbitrator to make the decision for them is that the decisions of arbitrators are, in almost all cases, not subject to appeal.

The arbitrator's decision is final, even if the referee has "got the facts wrong" and even if the referee makes an error of law. The grounds on which to award an arbitrator can be challenged are usually very limited, on the corruption proven, confidential conflict of interest, or excess of jurisdiction by the arbitrator. In this sense, a power more absolute arbiter of a judge or jury, whose decisions are potentially subject to two levels of appeal.

It does not hurt to remember that the judicial system itself was once a system of alternative dispute resolution, which replaced the old forms of dispute resolution, which may be cited as evidence in battle, ordeal, trial of compurgation, and the test Torture.

Trial by Battle: It was once thought that in case of dispute, the parties should resolve the issue in dispute fought out between them, and indeed this method is still prevalent today: Western films are full of examples of this type. In addition to the strategy of avoidance ("Out of Dodge City"), there is the strategy of confrontation ("Gunfight at the OK Corral", "High Noon") This procedure has become formalized in the Middle Ages when it became the custom for a disputant to choose a sample to engage in battle on his behalf. It was still the case that the winner of the battle he won the argument, but the disputant individual does not have to risk their necks to reach this type of "justice". Knights in medieval times would engage in tournaments, which would start at one end of the race, and proceed at full speed on horseback to their opponent, even on horseback and wearing heavy armor. The spears would hit the body at a gallop, and if they encounter any survivors would gallop to the other end of the race, and turn to face the opposite direction and start over. This turning point was named the tournament, and the rider was said to be "tournament" or "tournament", hence the modern term "lawyer".

Ordeal: Trial by trial could be called a weighted unfairly, often used to "prove" the witches. The unfortunate lady was weighted with stones in a sack and thrown into a pond. If he survived, which was by the grace of God, and she was innocent. If she drowned (almost always the case) that proved she was guilty. If you had to be done to take hot coals, if the mercy of God his hand did not blister, was innocent. It can be easily seen that this type of "evidence" has been used in cases where the prosecution was impossible to prove, and women were likely sick.

Trial by compurgation: Trial by compurgation was an ancient system that would carry a disputant's friends take an oath on his behalf that his story was correct. This primitive method of resolving a dispute based on the proposition advanced, in an age of faith, that if a person had sworn on the Bible to tell the truth, would have risked his soul to damnation if he lied. But it emerged that many people were willing to take that risk in order to help a friend.

Trial by Torture: Finally proof by torture has always been popular, though not in the field of civil cases, but more especially the case of criminal conduct or heresy or treason. As always results in death or a confession, the conviction rate is one hundred percent. But as a means to discover the truth, has the disadvantage that people confess to anything under torture, and inhuman and revolting. ("A person always wants to die under torture. Torture is worse than death." Anonymous Honduran torturer)

The shortcomings of these alternative methods of dispute resolution are evident, and, finally, the procedures of common law trial by judge and jury entirely replaced in these English-speaking countries. Our present legal procedures to avoid the risks inherent in the terrible trial by battle, trial or torture, and even more in the days of mercy just taking an oath can not guarantee that the witness would tell the truth. Any yet, our current system suffers from the drawbacks so eloquently set out by Chief Justice Warren Burger, who represents the growth in alternative procedures, of which mediation is perhaps the most rapid growth.

"Law in collaboration" is a relatively new, well suited to cases of marital dissolution, in which the parties and their lawyers made a deal in advance to prepare the terms of the divorce collaborative rather than competitive, ie without using the procedures abrasives and expensive litigation. And if they can not? The agreement provides that if the agreement is not reached, the parties may then proceed with litigation but should get new lawyers to do so. If lawyers can not reach an agreement, out of the case. If the parties must retain new lawyers, greatly increases the cost. Both parties and attorneys have therefore strong incentive to reach an agreement, and more than simply making the collaboration agreement in the first place it reduces tension and stress that accompanies the breakup of a marriage. Especially where children are involved, a continuous functional relationship between the parents is greatly enhanced by a collaborative process, and so often strongly affected by the traditional adversarial process.

Of all the methods of conflict resolution, negotiation requires only that the contestants talk to each other, even if he chooses to do so through a broker.

All other methods of conflict resolution are essentially one-sided and their shared responsibility is that conflicts are not managed unilaterally really solved at all.

In the search for justice, is often found in company with her late sister's small, whose name is "revenge" .......