Advantages and Disadvances of Dispute Resolution Process

1 BLANEY McMURTRY LLP | ALTERNATIVE Dispute Resolution | Advantages & disadvantages OF Dispute Resolution PROCESS_____BY: ALVA ORLANDO and disadvantages of Dispute Resolution ProcessesIn order to select the most appropriate Process , it is important to understand and appreciate the Advantages anddisadvantages of the various Dispute Resolution the outline of Advantages and disadvantages of Dispute Resolution processes provided below, a simplifiedspectrum of processes from consensual, informal (negotiation and mediation) to formal, adjudicative (arbitrationand trial) is used:CONSENSUAL PROCESSES Negotiation and MediationADVANTAGESDISADVANTAGESS peedy and informal Resolution of disputes ; generally less stressfulCan be used as stalling tacticConfidentiality and the avoidance of publicityParties not compelled to continuenegotiations or mediationMay improve communication between parties thereby preserving or enhancingrelationships between partiesDo not produce legal precedentsHigh degree of party control:Parties create own Process and craft own agreementExclusion of pertinent parties weakensfinal agreementFlexibility.

2 Resolutions can be tailored to the needs and underlying concerns ofthe parties and can address legal and non-legal issues as well as providing forremedies unavailable through adjudicative processesParties may have limited bargainingauthorityLegal and/or other standards of fairness can be used in crafting agreementsLittle or no check on power imbalancesbetween the partiesIncreased satisfaction and compliance with settlements when parties have directlyparticipated in crafting agreementsDisclosure of information andtruthfulness of communications dependon good faith of parties--mediationcannot compel good faithMay assist in clarifying and narrowing issues, and fostering climate of openness,co-operation, and collaboration, even if a settlement is not reachedIn negotiation -- lack of neutral mayreduce chance of reaching agreement,particularly in complex disputes or thoseinvolving multi-partiesBLANEY McMURTRY LLP | ALTERNATIVE Dispute Resolution | Advantages & disadvantages OF Dispute Resolution PROCESS_____BY.

3 ALVA ORLANDO communications are without prejudice and if no agreement reached,parties can pursue other optionsMay not adequately protect parties' legalrightsIn mediation parties may select mediator with substantive knowledgeIn mediation -- strong-willed orincompetent mediator can exercise toomuch controlIn mediation -- facilitated discussion useful if negotiations have broken down orif strong emotions presentProcess voluntary (except where mandated by contract or legislation)Agreement binds partiesADJUDICATIVE PROCESSES Arbitration and TrialARBITRATIONADVANTAGESDISADVANTAGESP arties create own processSuccess largely dependent on arbitratorArbitrator can be selected on basis of substantive knowledgeTime and cost affected by poor co-operation and poorprocess designConfidential proceedingsRight of appeal limitedFormality compels proper behaviour and may minimize badfaithConfidentiality not suitable for some disputesRules of procedure can be tailored to the processOutcome uncertain in binding arbitrationLess backlog than courtsFinal decision binding or advisory depending on wishes ofpartiesProceedings may be shorter and therefore less expensiveBLANEY McMURTRY LLP | ALTERNATIVE Dispute Resolution | Advantages & disadvantages OF Dispute Resolution PROCESS_____BY.

4 ALVA ORLANDO -- less opportunity for abuse of processTime consumingParties compelled to attendParties not in control of Process or decision -- outcomeuncertainInstitutionalized Process allows safeguardsPublic processFinal decision bindingOnerous evidentiary burdenLegal precedent may be establishedAvailable remedies limitedExpensive Process