Page 279 - DMGT519_Conflict Management and Negotiation Skills

Unit 13: Fairness and Trust in Negotiation

Dispute resolution is the process of resolving a conflict between parties. There are legally Notes
enforced methods of dispute resolution, such as litigation or arbitration, and there are consensual
methods such as mediation. In some cases, the parties will reach a dispute resolution agreement,
which is a legal agreement laying out the steps and timetable for solving the conflict.
According to the Businessdictionary.com, negotiation is the “bargaining (give and take) process
between two or more parties (each with its own aims, needs, and viewpoints) seeking to discover
a common ground and reach an agreement to settle a matter of mutual concern or resolve a
conflict.”
Dispute resolution is not negotiation nor is negotiation the same as dispute resolution. Simply
put, negotiation is one of the tools available for dispute resolution. Negotiation is about reaching
agreements, and if a dispute is holding up said agreement, clearly the negotiators need to find
a way to resolve the dispute.
Business negotiations should not focus on dispute resolution. To succeed, business negotiations
should be collaborative and all parties should be entering the negotiation with the intent of
reaching a mutually agreeable deal. If there is a conflict or dispute beforehand, it is hard to see
how the parties will work together collaboratively.

If the parties are negotiating a contract, and can’t resolve their differences through negotiation,
then the may need to move to mediation or arbitration.

Judicial Dispute Resolution

The legal system provides a necessary structure for the resolution of many disputes. However,
some disputants will not reach agreement through a collaborative processes. Some disputes
need the coercive power of the state to enforce a resolution. Perhaps more importantly, many
people want a professional advocate when they become involved in a dispute, particularly if the
dispute involves perceived legal rights, legal wrongdoing, or threat of legal action against
them.
The most common form of judicial dispute resolution is litigation. Litigation is initiated when
one party files suit against another. In the United States, litigation is facilitated by the government
within federal, state, and municipal courts. The proceedings are very formal and are governed
by rules, such as rules of evidence and procedure, which are established by the legislature.
Outcomes are decided by an impartial judge and/or jury, based on the factual questions of the
case and the application law. The verdict of the court is binding, not advisory; however, both
parties have the right to appeal the judgment to a higher court. Judicial dispute resolution is
typically adversarial in nature, for example, involving antagonistic parties or opposing interests
seeking an outcome most favorable to their position.
Retired judges or private lawyers often become arbitrators or mediators; however, trained and
qualified non-legal dispute resolution specialists form a growing body within the field of ADR.
In the United States of America, many states now have mediation or other ADR programs
annexed to the courts, to facilitate settlement of lawsuits.

Extra Judicial Dispute Resolution:

Some use the term dispute resolution to refer only to Alternative Dispute Resolution (ADR), that
is, extrajudicial processes such as arbitration, collaborative law, and mediation used to resolve
conflict and potential conflict between and among individuals, business entities, governmental
agencies, and (in the public international law context) states. ADR generally depends on agreement
by the parties to use ADR processes, either before or after a dispute has arisen. ADR has

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