Dispute Resolution

Amicable means of settlement of disputes

Judicial mechanisms
Arbitration
Adjudication
Non-judicial mechanisms
Negotiation
Good offices
Mediation
Inquiry
Conciliation

Dispute resolution is the process of resolving disputes between parties.

METHODS:
Methods of dispute resolution include:

 lawsuits (litigation)
 arbitration
 collaborative law
 mediation
 conciliation
 many types of negotiation
 facilitation
One could theoretically include violence or even war as part of this spectrum, but dispute
resolution practitioners do not usually do so; violence rarely ends disputes effectively, and
indeed, often only escalates them.
Dispute resolution processes fall into two major types:

1. Adjudicative processes, such as litigation or arbitration, in which a judge, jury or

arbitrator determines the outcome.
2. Consensual processes, such as collaborative law, mediation, conciliation, or negotiation,
in which the parties attempt to reach agreement.
Not all disputes, even those in which skilled intervention occurs, end in resolution.
Such intractable disputes form a special area in dispute resolution studies.

Judicial Dispute Resolution:

Litigation:
The legal system provides resolutions for many different types of disputes. Some disputants will
not reach agreement through a collaborative process. 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.
Arbitration:
Arbitration has been used for centuries, including in antiquity, for the resolution of disputes
between states and state-like entities. After a period of relative disuse, Jay's Treaty between the
United States and Great Britain revived international arbitration as a means of resolving
interstate disputes. The 1899 and 1907 Hague Conferences addressed arbitration as a mechanism
for resolving state-to-state disputes, leading to the adoption of the Hague Conventions for the
Pacific Settlement of International Disputes. The Conventions established the Permanent Court
of Arbitration and a rudimentary institutional framework for international arbitration of interstate
disputes. In recent years, international arbitration has been used to resolve a number of disputes
between states or state-like entities, including Eritrea v. Yemen, the Abyei Arbitration, the
OSPAR Arbitration, and the Iron Rhine Arbitration.

Extra judicial Dispute Resolution:

Good Offices:
The good offices method is where the third party offers ‘good offices’ to the conflicting states to
facilitate dialogue and assist states towards peaceful settlement of the dispute. The third party
offering good offices must be acceptable to all the parties.Once the negotiations have started, the
functions of good offices are usually considered to be completed.
The World Bank provided good offices and mediated the solution to the Indus River dispute,
which resulted in the negotiation of the 1960 Indus Waters Treaty.
Mediation:

Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving
disputes between two or more parties with concrete effects. Typically, a third party, the mediator,
assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of
domains, such as commercial, legal, diplomatic, workplace, community and family matters.
The term "mediation" broadly refers to any instance in which a third party helps others reach
agreement. More specifically, mediation has a structure, timetable and dynamics that "ordinary"
negotiation lacks. The process is private and confidential, possibly enforced by law. Participation
is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs
the process. Mediation is becoming a more peaceful and internationally accepted solution in
order to end conflict. Mediation can be used to resolve disputes of any magnitude.
Example of a mediated dispute is the Israeli– Jordanian bilateral negotiations which were
combined with informal discussions where American and Russian diplomats acted as mediators
which resulted in the 1994 Treaty of Peace between Israel and Jordan.
Conciliation:
It is an alternative dispute resolution (ADR) process whereby the parties to a dispute use a
conciliator, who meets with the parties both separately and together in an attempt to resolve their
differences. They do this by lowering tensions, improving communications, interpreting issues,
encouraging parties to explore potential solutions and assisting parties in finding a mutually
acceptable outcome.
Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal
standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually
writes no decision, and makes no award.
Conciliation differs from mediation in that in conciliation, often the parties are in need of
restoring or repairing a relationship, either personal or business.
Negotiation:
It is a dialogue between two or more people or parties intended to reach a beneficial outcome
over one or more issues where a conflict exists with respect to at least one of these issues. This
beneficial outcome can be for all of the parties involved, or just for one or some of them.
It is aimed to resolve points of difference, to gain advantage for an individual or collective, or to
craft outcomes to satisfy various interests. It is often conducted by putting forward a position and
making small concessions to achieve an agreement.

Characteristics of a negotiation

Negotiation is:

 Voluntary: No party is forced to participate in a negotiation. The parties are free to

accept or reject the outcome of negotiations and can withdraw at any point during the
process. Parties may participate directly in the negotiations or they may choose to be
represented by someone else, such as a family member, friend, a lawyer or other
professional.
 Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They
can range from two individuals seeking to agree on the sale of a house to negotiations
involving diplomats from dozens of States (e.g., World Trade Organization (WTO)).
 Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation is
reached by the parties together without recourse to a third-party neutral.
 Informal: There are no prescribed rules in negotiation. The parties are free to adopt
whatever rules they choose, if any. Generally they will agree on issues such as the subject
matter, timing and location of negotiations. Further matters such as confidentiality, the
number of negotiating sessions the parties commit to, and which documents may be used,
can also be addressed.
 Confidential: The parties have the option of negotiating publicly or privately. In the
government context, negotiations would be subject to the criteria governing disclosure.
 Flexible: The scope of a negotiation depends on the choice of the parties. The parties can
determine not only the topic or the topics that will be the subject of the negotiations, but
 also whether they will adopt a positional-based bargaining approach or an interest-based
approach.

Inquiry:

Inquiry as a distinct form of dispute resolution process involves an independent investigation of

an issue disputed by two or more parties. The principal features of inquiry in this context are: It
involves an inquiry into facts, not law. It involves the establishment of a specific type of panel to
carry out the inquiry. It does not result in a binding outcome, unless the parties agree otherwise.
The nature of the proceedings may vary – in some cases, inquiry proceedings can resemble
arbitration or a judicial process, involving written submissions and oral hearings.

Fact-finding and inquiry in international organisations Fact-finding and inquiry continue to play
an important role in international relations. However, as Merrills notes, in practice commissions
of inquiry as provided in the Hague Conventions have been little used. Instead, commissions of
inquiry have tended to be established under the auspices of international organisations, such as
the League of Nations, the United Nations or the International Civil Aviation Organization. For
example, in 1999 the UN Commission on Human Rights called on the UN Secretary-General to
establish an international commission of inquiry in relation to East Timor ‘to gather and compile
systematically information on possible violations of human rights and acts which may constitute
breaches of international humanitarian law committed in East Timor since…January 1999…and
to provide the Secretary-General with its conclusions with a view to enabling him to make
recommendations on future actions…’ (Commission on Human Rights, Resolution 1999/S-4/1).
The International Commission of Inquiry on East Timor, established in response to this request,
submitted its report in January 2000(UN Document A/54/726, S/2000/59, 31 January 2000).