Types of dispute resolution

Mediation

In mediation, a neutral third party mediator facilitates the negotiation of a solution by the parties involved. LEADR NZ mainly deals with mediation. Explore our mediation section for full details.

Negotiation

Negotiation involves “conferring with another with a view to agreement”. There are no formal rules to governing how negotiations should be conducted, although there are culturally acceptable approaches. Negotiation is much more than persuasion. Although you can try to persuade a difficult person to see it your way, you are merely discussing or arguing your way through a problem unless you can vary the terms and commit resources.

Assisted negotiation

Here the parties are assisted in their negotiations by a third party who coaches or represents them in the negotiations without a formalised structure. Lawyers, accountants, trusted friends or other technical or professional advisers are often called upon to fulfil this role.

Conciliation

This is used to refer to a number of different processes. The most common are:

  • • where a third party acts as a conduit, transmitting offers of settlement between the parties but taking a much less active role in the negotiation than a mediator, or

  • • the processes used in agencies that administer legislative rights, in which case participation may be mandatory and the conciliator may be obliged to ensure that the solution reached adheres to the relevant legislation.

Case presentation or mini-trial

This is where in-house representatives present brief summaries of the parties’ cases to senior executives of both parties with authority to settle the dispute, in a structured information exchange. The senior executives then negotiate a solution, taking into account the information presented to them. Sometimes an independent third party will chair the presentation.

Independent expert appraisal or early neutral evaluation

This is where the parties appoint an independent expert to investigate and provide an opinion on the issues in dispute, either as a basis for solution or simply to clarify the issues. In some cases, the parties agree to be bound by the opinion, which is often submitted to them in draft form before being finalised. The process may then become a type of mediation on the draft opinion, putting responsibility for a solution back into the hands of the parties.

Arbitration

Arbitration involves submitting a dispute to an arbitrator who hears arguments from the parties then resolves the conflict by making a decision (usually binding) called an ‘award’. The courts can enforce the award. There are varying degree of formality in how evidence is presented during arbitration. This approach provides greater flexibility and more party control than the formal court system. It is also usually private and confidential.

Litigation

This is the system in which the courts impose a binding decision on the parties. It is formal, with strict rules of evidence, and adversarial. The legal framing, analysis and argument, together with the adversarial nature of the process, means that the system has little scope for reconciling or accommodating the parties' interests. It also produces 'winners and losers'.

While LEADR NZ deals mainly with mediation, we can also offer advice about these other forms of dispute resolution. Contact us for more information.