Alternative Dispute Resolution Explained for Students in Law Clerk Courses

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Disputes happen all the time between people. Some common examples of business disputes are differences of opinion over contracts between employers and their employees, or a point of sale disagreement between a business and a customer. Citizens also frequently have conflicts that need assistance to find a resolution. These can include child custody disputes, an issue between neighbours, or a conflict between a resident and a municipality. The list is endless, but when any such conflict arises, there are generally two ways the matter can be resolved. The two parties can either choose to take the dispute to court for litigation, or they can opt to settle things outside of the court system.

When the second choice is made, this is referred to as alternative dispute resolution. Often chosen by opposing parties looking for a quicker and less costly solution, the three most common approaches to out-of-court conflict resolution are mediation, negotiation, and arbitration. To understand these approaches, let’s inspect them more closely. 

A Look at Mediation for Those in Law Clerk Training

If you’re taking law clerk courses, you’ll need to know about mediation, often considered the most amicable of the alternative approaches to dispute resolution. This approach requires the use of an unbiased, neutral third-party mediator to provide a calming presence and to help inspire ideas for resolving the issue at hand. 

The mediator will often suggest practical and creative solutions to satisfy both parties. In order for mediation to go well, both parties must demonstrate a commitment to the process. If things go smoothly, both parties will enter into an agreement in the presence of the mediator, outlining how they’ve decided to resolve the matter.  

A mediator is impartial and helps individuals arrive at the most practical solution to a dispute

How the Negotiation Approach Works

A mediator is not always needed for those attempting to settle a dispute outside of the courts. The opposing parties may agree to sit down face to face to discuss the matter to see if some kind of common ground can be reached. This type of negotiation allows those in conflict to take control of the situation to arrive at a quick and practical solution that works best for them both. 

While no additional person is needed beyond the two opposing parties to settle the negotiation, one side may decide they feel more comfortable going through this process with the help of a lawyer, counsellor, or advocate to negotiate on their behalf.

A Final Effort to Find a Solution Through Arbitration

If you’re pursuing law clerk training, you might be interested in the process of arbitration for dispute resolution. Arbitration is typically used when efforts to settle things through negotiation and mediation have failed. As the dispute escalates, this private process is often a last effort to keep things out of the eye of the public court system. Similar to a mediator, the middle person appointed in this process is also impartial and neutral—but the arbitrator is also usually an expert in some form of industry or law.  The arbitration process is also a lot more involved than mediation, involving legal arguments brought forth to be used as evidence for the arbitrator to base the final decision upon. 

Both parties in the dispute have the right to have a representative in this process, although a legal counsel is not required. Once a decision has been made by the arbitrator based on the facts presented, they will explain their decision to both parties. If this decision does not satisfy either side, they have the right to advance things to the courts under applicable laws. In these cases, the individual must state in advance of the process that they may not agree to the arbitrator’s decision being final and binding.

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