Dispute Resolution Options

The table below provides a representative comparison of the various dispute resolution options available. The circumstances of your particular situation will help determine which process would best suit your needs in regards to cost, client control and the level of legal intervention that may or  may not be required.

Table prepared by Hobart Popick.

 

Financial Cost / Level of Client Control

Dispute Resolution Process

Lowest Cost / Highest Client Control

“Kitchen Table” Discussion

Parties engage in one-on-one discussions without third parties to resolve their dispute.  Parties may consult with an attorney outside of the discussion as to specific questions.  Parties have greatest direct involvement in the process with minimal cost to them other than time involved.  Especially effective if parties can communicate well with each other and wish to continue and preserve a relationship after the dispute is resolved. 

 Low to Moderate Cost / High Level of Client Control

 Mediation

A voluntary process in which a neutral third person assists the parties in resolving their dispute.  The parties retain a moderate to high degree of direct involvement in the process in that the parties often negotiate face to face, the mediator has no authority to impose a settlement and the parties are under no obligation to reach an agreement.  Mediation proceedings are generally private and confidential.  The parties typically share the cost of hiring the mediator, whose hourly fees often are equal to or exceed the prevailing rates of hiring an attorney.  A mediator may help the parties to frame the issues in need of resolution and/or assist the parties to break an impasse on any particular issue(s) by opening up the lines of communication.  Many times mediators advise parties to retain counsel, in which case additional costs will be associated with mediation, which may exceed the costs of a collaborative process.  Works especially well when the legal issues are clear, the parties are able to assert their interests while remaining committed to reaching a fair resolution and the parties wish to minimize their involvement with lawyers.

 Moderate Cost / High Level of Client Control

 Collaborative Law

A process in which the parties focus on cooperative problem solving.  Each party hires a lawyer who is specially trained to use negotiation tools and methods designed to meet the interests and needs of the parties to the dispute.  The parties and their attorneys sign a Collaborative Law Agreement in which the goal is settlement, they agree to share relevant information, maintain the confidentiality of the process, treat each other respectfully and hire experts jointly if they are needed.  Through the use of a series of four-way meetings, the parties, with the help of their lawyers, find mutually acceptable resolutions to their issues in a structured environment.  The parties retain authority to ultimately approve or reject a proposed settlement.  If either party seeks court involvement, both attorneys agree to withdraw from representation.  Especially effective if there are legal issues, one or both parties want their own advocate at the table and both parties wish to continue and preserve a relationship after the dispute is resolved.

 Higher Cost / Lower Level of Client Control

 Negotiation

Both parties retain attorneys to advise and represent their interests and negotiate a settlement; unlike Collaborative Law, counsel may be the same attorneys who handle the litigation of the matter, and thus, negotiation may be used at any point prior to or during litigation.  Clients have ultimate authority to approve or reject a proposed settlement and, therefore, have more direct involvement than at trial; however, because clients do not negotiate directly with the opposing party but rather, through their attorneys, they have less involvement in the process and the costs may be higher.  Effective when there are legal disputes requiring a judge to make decisions, or when the parties are willing to give the lawyers more control.

 Highest Cost / Lowest Level of Client Control

 Litigation / Trial

Traditional court-oriented process; both parties retain attorneys to litigate the dispute in a lawsuit on their behalf in court, serve discovery requests and responses and, ultimately, present the matter to a judge for a decision.  Litigating a matter through to trial, and in some cases through appeal, is relatively more costly and time-consuming than other dispute resolution processes.  Client has least degree of direct involvement in the process, which is significantly influenced by the court's procedural rules and the posture of opposing party and his or her attorney's litigation style; outcome can depend on judge's individual approach.  Depending on the conduct of the parties and counsel during litigation, the prospect of preserving a relationship after the dispute is over may be diminished.  Effective when the parties are unable, on their own or with the assistance of third parties, to communicate with one another in a productive manner and a court is needed to make the necessary decisions.