Did you know that 90% of disputes are settled out of court? Participatory justice offers the following dispute resolution processes:
Mediation
Mediation is a dispute resolution process that involves exploring solutions rather than trying to determine who is right and who is wrong.
The first condition for mediation to be carried out is for all the parties to accept and opt for the mediation process. This means that they agree to have another person—a neutral and impartial third party called a "mediator"—help them find a solution to their dispute. Contrary to a settlement conference, mediation may take place even if legal action has not been initiated.
Collaborative law
Collaborative law is still little known and little used and is often confused with mediation and negotiation; nevertheless, it is a very distinct dispute resolution process that has proven its worth in the U.S.
In collaborative law, the people involved in a dispute and their lawyers must agree, in advance and in a contract, that they will find a satisfactory solution without having recourse to the courts, failing which the lawyers will withdraw from the case. The parties must also reveal all necessary information for resolving the dispute and must sign a confidentiality clause in order to avoid having what is said in negotiations from being subsequently used. In the collaborative law process, the negotiation sessions may be held between the people involved, in the presence of their lawyer or solely between lawyers.
Negotiations
Negotiations are part of everyone's everyday life. You regularly negotiate with your spouse, your employer, your children or when you do business and, in most cases, you reach an agreement. It is on this basis that the justice system also uses negotiation techniques.
Negotiations are the foundation of all dispute resolution processes. They consist of trying to reach an agreement with the other party by discussing and agreeing to make certain compromises.
All throughout the legal process, you may negotiate with the opposing party. You may even initiate negotiations before taking legal action.
In a number of cases, negotiations may lead to an out-of-court settlement. If that is the case, make sure all the details and all the conditions of the agreement are included in a written document signed by all the parties.
Conciliation and settlement conference
Conciliation is very similar to mediation; however, the conciliator plays a more passive role and generally doesn't propose any solutions, as the mediator does.
Within legal proceedings, the judge sometimes plays the role of conciliator during a special hearing called a "settlement conference".
A settlement conference may be held at any stage of the legal process if these two conditions are met:
- legal action must have been taken
- both parties must give their consent to proceed
Arbitration
Arbitration is a decisive process whose outcome will be final and binding (that is, without appeal).
Arbitration is somewhat like a private trial. The arbitrator(s) take on the role of judge.
If I opt for one of these dispute resolution processes, do I lose my recourse before the courts?
Dispute resolution processes don't cause you to lose your recourse before the courts. At any time, you may go before the courts (except in an arbitration process or a med-arb process—a process combining mediation and arbitration—which are both final and without appeal).
Going to trial is the last resort. This means that the parties have not succeeded in reaching an agreement or quite simply don't want to try and reach an agreement, but rather want a judge to settle the dispute. A trial can be defined as the process that allows the parties faced with a problem situation to submit their arguments and proof to a judge, who will reach a decision. In this process, it is the judge who decides. There is a winner and a loser.
