Methods for Resolving Conflicts and Disputes

Resolving Conflicts and Disputes

What Are Your Options: We are all familiar with the most traditional dispute-resolution process
of our civil justice system: litigation and trial with a judge or jury deciding who is right or wrong
- where someone wins and someone loses. However, there are many other options available.
Negotiation, mediation and arbitration - often called ADR or alternative dispute resolution- are
the most well-known.

Whether you are involved in a family or neighborhood dispute or a lawsuit involving thousands
of dollars, these processes should be considered. They are often the more appropriate methods of
dispute resolution and can result in a fair, just, reasonable answer for both you and the other
party. Settlement and compromise have long been favored in the legal system. In fact, most cases
that are filed in a court do settle. Only five percent of all cases filed go to trial. ADR procedures
are excellent options for you in dealing with controversy, allowing you to reach resolution earlier
and with less expense than traditional litigation. In fact, many courts require parties to consider
some form of ADR before going to trial. The following processes describe ways to resolve
disputes.

Negotiation

Definition: Negotiation is the most basic means of settling differences. It is back-and-forth

communication between the parties of the conflict with the goal of trying to find a solution.

The Process: You may negotiate directly with the other person. You may hire an attorney to
negotiate directly with the other side on your behalf. There are no specific procedures to follow -
you can determine your own - but it works best if all parties agree to remain calm and not talk at
the same time. Depending on your situation, you can negotiate in the board room of a big
company, in an office or even in your own living room.

Negotiation allows you to participate directly in decisions that affect you. In the most successful
negotiations, the needs of both parties are considered. A negotiated agreement can become a
contract and be enforceable.

When and How Negotiation Is Used: Most people negotiate every day. In some circumstances
you may want the help of a lawyer to help you negotiate a fair deal. Negotiation is the first
method of choice for problem-solving and trying to reach a mutually acceptable agreement. If no
agreement is reached, you may pursue any of the other options suggested here. This process can
be appropriately used at any stage of the conflict - before a lawsuit is filed, while a lawsuit is in
progress, at the conclusion of a trial, even before or after an appeal is filed.

Characteristics of Negotiation:

 Voluntary
 Private and confidential
  Quick and inexpensive
 Informal and unstructured
 Parties control the process, make their own decisions and reach their own agreements (no
third party decision maker)
 Negotiated agreements can be enforceable
 Can result in a win-win solution

Mediation

Definition: Mediation is a voluntary process in which an impartial person (the mediator) helps
with communication and promotes reconciliation between the parties which will allow them to
reach a mutually acceptable agreement. Mediation often is the next step if negotiation proves
unsuccessful.

The Process: The mediator manages the process and helps facilitate negotiation between the
parties. A mediator does not make a decision nor force an agreement. The parties directly
participate and are responsible for negotiating their own settlement or agreement.

At the beginning of the mediation session, the mediator will describe the process and the ground
rules. The parties or their attorneys have an opportunity to explain their view of the dispute.
Mediation helps each side better understand the other’s point of view. Sometimes the mediator
will meet separately with each side. Separate “caucusing” can help address emotional and factual
issues as well as allow time for receiving legal advice from your attorney. Mediations are
generally held in the office of the mediator or other agreed location.

Agreements can be creative. You could reach a solution that might not be available from a court
of law. For example, if you owe someone money but don’t have the cash, rather than be sued and
get a judgment against you, settlement options could include trading something you have for
something the other wants. If an agreement is reached, it will generally be reduced to writing.
Most people uphold a mediated agreement because they were a part of making it. It can become
a contract and be enforceable. If there is no agreement, you have not lost any of your rights and
you can pursue other options such as arbitration or going to trial.

When and How Mediation Is Used: When you and the other person are unable to negotiate a
resolution to your dispute by yourselves, you may seek the assistance of a mediator who will
help you and the other party explore ways of resolving your differences. You may choose to go
to mediation with or without a lawyer depending upon the type of problem you have. You may
always consult with an attorney prior to finalizing an agreement to be sure that you have made
fully informed decisions and that all your rights are protected. Sometimes mediators will suggest
that you do this. Mediation can be used in most conflicts ranging from disputes between
consumers and merchants, landlords and tenants, employers and employees, family members in
such areas as divorce, child custody and visitation rights, eldercare and probate as well as simple
or complex business disputes or personal injury matters. Mediation can also be used at any stage
of the conflict such as facilitating settlements of a pending lawsuit.
Attorneys and other professionals provide private mediation for a fee. If you have an attorney,
you can work together to select a mediator of your choice. You may want a mediator who is
knowledgeable about the subject matter of your dispute. You may wish to use a for-fee mediator
in the first instance or if Early Settlement mediation has not resulted in a resolution of your
dispute. You may also find mediators or mediation services listed in the telephone directory or
available on lists provided by some courts or private professional organizations. When selecting
a mediator, you should always check their credentials and get references. Mediators qualified
under the District Court Mediation Act or certified pursuant to the Dispute Resolution Act meet
statutory standards of training and experience.

Who Provides This Service: Public mediation services are available through Early Settlement
Regional Centers located statewide. A list of the regional centers can be found online
at www.oscn.net/static/adr. This program provides the services of volunteer mediators, trained
and certified to mediate in the Administrative Office of the Oklahoma Supreme Court. Mediators
in this system are assigned to mediate your dispute by the various program administrators. They
are available at minimal or no charge to help you resolve conflicts, often without the assistance
of an attorney or the need to go to court. Call 405-556-9300 for the phone number and location
of the center nearest you.

You may also find mediation in our state and federal court systems called court-sponsored
mediation. Generally you and your attorney may select a private mediator or choose a public
service. Fees may apply. Judges are frequently referring cases to settlement procedures such as
mediation to help litigants resolve their disputes in less time and with less cost than litigation and
trial.

Characteristics of Mediation:

 Promotes communication and cooperation

 Provides a basis for you to resolve disputes on your own
 Voluntary, informal and flexible
 Private and confidential, avoiding public disclosure of personal or business problems
 Can reduce hostility and preserve ongoing relationships
 Allows you to avoid the uncertainty, time, cost and stress of going to trial
 Allows you to make mutually acceptable agreements tailored to meet your needs
 Can result in a win-win solution

Arbitration

Definition: Arbitration is the submission of a disputed matter to an impartial person (the

arbitrator) for decision.

The Process: Arbitration is typically an out-of-court method for resolving a dispute. The
arbitrator controls the process, will listen to both sides and make a decision. Like a trial, only one
side will prevail. Unlike a trial, appeal rights are limited.
In a more formal setting, the arbitrator will conduct a hearing where all of the parties present
evidence through documents, exhibits and testimony. The parties may agree to, in some
instances, establish their own procedure; or an administrating organization may provide
procedures. There can be either one arbitrator or a panel of three arbitrators. An arbitration
hearing is usually held in offices or other meeting rooms.

The result can be binding if all parties have previously agreed to be bound by the decision. In
that case, the right to appeal the arbitrator’s decision is very limited. An arbitrator’s award can be
reduced to judgment in a court and thus be enforceable. In nonbinding arbitration, a decision
may become final if all parties agree to accept it or it may serve to help you evaluate the case and
be a starting point for settlement talks.

How and When Arbitration Is Used: A common use of arbitration is in the area of labor disputes
- between fire fighters and the city in wage disputes, for example. You will usually be
represented by an attorney in arbitration.

Many contracts have clauses which require that disputes arising out of that contract be arbitrated.
You may have seen such a provision when you applied for a credit card or opened a retirement
account or other account with a stock broker. You may want to explore using this process if you
and the other side agree that the problem needs to have someone make a decision but you do not
want the expense of going through the court process. If you agree to arbitrate or sign a contract
with an arbitration clause, you should understand that the arbitrator may make the final decision
and that you may be waiving your right to a trial in court.

Who Provides This Service: Many attorneys, other professionals or professional associations
offer their services as arbitrators. Typically your attorney will select the arbitrator based upon the
particular type of the dispute. In complex and highly technical cases, often an arbitrator who is
knowledgeable in that field is chosen. Usually fees are charged.

Some courts offer court-sponsored, nonbinding arbitration and have specific procedural rules to
follow.

Characteristics of Arbitration:

 Can be used voluntarily

 Private (unless the limited court appeal is made)
 Maybe less formal and structured than going to court, depending on applicable arbitration
rules
 Usually quicker and less expensive than going to court, depending on applicable
arbitration rules
 Each party will have the opportunity to present evidence and make arguments
 May have a right to choose an arbitrator with specialized expertise
 A decision will be made by the arbitrator which may resolve the dispute and be final
 Arbitrator’s award can be enforced in a court
 If nonbinding, you still have the right to a trial
Litigation (Going To Court)

Definition: Litigation is the use of the courts and civil justice system to resolve legal
controversies. Litigation can be used to compel opposing party to participate in the solution.

The Process: Litigation is begun by filing a lawsuit in a court. Specific rules of procedure,
discovery and presentation of evidence must be followed. The attorney for the other side will
want to take your deposition to learn more about the facts as you see them and your position in
the case. There can be a number of court appearances by you and/or your lawyer. If the parties
cannot agree how to settle the case, either the judge or a jury will decide the dispute for you
through a trial.

A trial is a formal judicial proceeding allowing full examination and determination of all the
issues between the parties with each side presenting its case to either a jury or a judge. The
decision is made by applying the facts of the case to the applicable law. That verdict or decision
can conclude the litigation process and be enforceable; however, if appropriate, the loser can
appeal the decision to a higher court. In some cases, the losing party may have to pay the costs of
the lawsuit and may have to pay the other party’s attorney fees.

How and When Litigation Is Used: Our American civil justice system is one of the best in the
world. Our Constitution gives us the right to a fair trial. If you want your day in court with a
judge or jury of your peers deciding the outcome, then the pursuit of litigation and trial of the
case is for you.

You may be in a municipal court, state district court or a federal court depending on the type of
dispute you have and where your attorney files your case or where you get sued. State court trial
judges are elected on a nonpartisan ballot, though vacancies are filled through an appointment
process from highly qualified applicants. The district courts also appoint special judges, who
handle certain kinds of cases, such as small claims and divorces. These judges are selected by the
district judges from qualified applicants. Federal district judges are nominated by the president
and confirmed by the U.S. Senate. Federal magistrates are selected by the federal district judges.
In all courts, cases are randomly assigned to the various judges. You have no choice concerning
which judge will hear your case. Juries are randomly selected from a jury wheel of licensed
drivers within each state judicial district and, in the case of federal court juries, from a jury wheel
of registered voters and drivers license holders.

If you cannot settle your differences through negotiation, mediation, arbitration or some other
means, then you should pursue litigation through the courts with your lawyer.

Characteristics of Litigation:

 Involuntary - a defendant must participate (no choice)

 Formal and structured rules of evidence and procedure
 Each party has the opportunity to present its evidence and argument and cross-examine
the other side - there are procedural safeguards
 Public - court proceedings and records are open
  The decision is based on the law
 The decision can be final and binding
 Right of appeal exists
 Losing party may pay costs

Other Dispute Resolution Procedures and Where You May Find Them:

 If you have a problem with a new car, you may find automobile arbitration through the
Better Business Bureau to be a solution for you. The manufacturer of your car may also
have a process of resolving disputes.
 If you are involved in agriculture and have a farmer-creditor controversy, the Agricultural
Mediation Program may be helpful to you. For more information,
visit www.ok.gov/mediation or call 800-248-5465.
 Victim-offender mediation which can result in restitution to the victim is available
through the Oklahoma Department of Corrections.
 Other state and federal agencies sometimes offer settlement options in addition to their
regular administrative procedures. For example, mediation of workers’ compensation
claims is now available.
 If you do go to court, in addition to court-sponsored mediation or other ADR programs,
you may find more procedures that encourage settlement or can resolve the dispute. Your
attorney can tell you about the processes available in the court in which your case is
pending.
 Appellate courts, such as our state Supreme Court and the federal Tenth Circuit Court of
Appeals, have settlement conference opportunities.
 Don’t forget Small Claims Court where a judge can decide your dispute - usually without
a lawyer - if your claim is valued under $7,500. Early Settlement mediation is often
available here to offer settlement assistance first so you may not need to go before the
judge.
 Managing meetings and reaching consensus within any kind of organization or group can
often be achieved through the assistance of a trained facilitator. Facilitators are available
through various nonprofit support centers and service leagues or other community
organizations.
 School Peer Mediation - Peaceful Resolutions for Oklahoma Schools (PROS), a project
of the Oklahoma Bar Association/Law-related Education Department and Early
Settlement, is training students to mediate their own disputes.
 Communication and conflict resolution skills classes may be available in your
community by contacting the Law-related Education Department at the Oklahoma Bar
Association thanks to a partnership with Leadership Oklahoma.
 The OBA Alternative Dispute Resolution Section may be a resource to identify additional
options.

Selecting the Appropriate Method

The method you use to resolve your dispute will depend upon your personal needs and the nature
of your particular dispute. You may want to consult with an attorney to help diagnose which
process best serves your particular situation.
Considerations:

 Private and confidential or in a public court setting

 Informal setting and a more flexible process or one that is more formal and has specific
rules to follow
 Personal control or decision made by a judge or arbitrator
 Time
 Costs
 Maintaining relationships
 Dispute decided on questions of law, resolved with business principles or a solution
found through other fair, yet practical, means
 Binding and easily enforceable

There will always be times when a courtroom trial is the best option. Often, however, you are
better served by one of the other alternative dispute resolution processes described in this
brochure. With a better understanding of the considerations that can help you choose the most
appropriate method, your conflicts can be more successfully managed and your disputes more
satisfactorily resolved.

Litigation is the term used to describe proceedings initiated between two opposing parties to
enforce or defend a legal right. Litigation is typically settled by agreement between the parties,
but may also be heard and decided by a jury or judge in court.

Contrary to popular belief, litigation is not simply another name for a lawsuit. Litigation includes
any number of activities before, during, and after a lawsuit to enforce a legal right. In addition to
the actual lawsuit, pre-suit negotiations, arbitrations, facilitations and appeals may also be part of
the litigation process.

Litigation Before the Lawsuit

Litigation begins the moment someone decides to formally enforce or defend his or her legal
rights. In most cases, this happens the moment a party hires an attorney to represent their
interests. Most attorneys engage in a variety of “pre-suit” litigation activities. These can include
many things, from writing a letter on a client’s behalf called a demand letter, to demand that a
party compensate a victim for economic or physical injury, to filing a Notice of Eviction with a
local court. Pre-suit litigation is subject matter specific and varies depending on the
circumstances surrounding a particular case. However, there are several steps in litigation that
occur in nearly every case.

The first step in any litigation is investigation. Litigation is meaningless without information
about the harm that occurred. Attorneys, and parties, often conduct extensive independent
investigations into the facts and potential outcomes of a particular case prior to filing suit. A
thorough pre-suit investigation focuses the issues in the case and satisfies the wronged party and
his attorney that the harm was indeed caused by the potential defendant and that the law provides
for a remedy. Knowing the facts of what occurred and how and why the law provides a
remedy allows the wronged party to present the case to the party who caused the harm
effectively. It is also the beginning of the wronged party's preparation to present the facts and
law to a court of law.

Pre-suit Negotiation

Often, pre-suit litigation includes negotiations between the parties designed to avoid the cost
and inconvenience of a formal lawsuit. The demand letter sent to the party who allegedly caused
the harm is designed to convince the party that the wronged party, the plaintiff, has a basis for
the claim and solid evidence and documentation of the money value of the harm caused, to give
the defendant the opportunity to settle prior to expending large amounts of money in the ensuing
litigation. Nonetheless, the plaintiff typically requests more than they believe the defendant will
be willing to pay. The defendant often responds with an amount that is less than they may
actually be willing to pay. Still, it isn't uncommon for a case to settle before or soon after a
lawsuit is filed, for some amount in between what each party initially proposed. Insurance
companies in particular are proponents of early resolution.

Alternative Dispute Resolution

Facilitation, mediation or arbitration—all forms of what is commonly referred to as “alternative

dispute resolution” or “ADR”—sometimes take place pre-suit, or even in lieu of a formal
lawsuit. Again, this is largely a cost-saving move. Facilitation and mediation are largely informal
processes. Each side presents their case to an independent attorney or panel of attorneys. The
facilitator or mediator then attempts to negotiate a settlement between the two sides.
Occasionally, a facilitator or mediator will “put a number” on a case. This means that he has put
forth a dollar value on the case that he believes is a reasonable amount to settle the matter. The
parties then have a fixed time to accept or reject the number. If both parties accept, the case
settles.

Arbitration is a more formal type of ADR. It is usually triggered by a contractual provision,

where the parties or one of the parties have signed an agreement stating they would accept
arbitration in the event of a dispute. Arbitration is basically a court case that is heard by a panel
of attorneys or a single attorney instead of a judge or jury. It is less formal than litigation in the
court system, and while not without cost, arbitration can often be cheaper than a court case due
to the less stringent rules governing the proceeding.

Arbitration can sometimes occur at later phases in litigation, such as during the trial, when
parties agree that they want to expedite the case or limit costs.

The Lawsuit

The formal lawsuit is what most people think of when they hear the term litigation. A lawsuit
involves a plaintiff filing a formal Complaint with the appropriate court, and then serving a copy
upon a defendant to provide them notice of the impending court case. The defendant then files an
Answer within a prescribed amount of time, and the lawsuit commences. The rules involving
formal lawsuits vary from city to city and state to state. Suffice it to say that litigation of a formal
lawsuit generally involves three stages: Discovery, Trial, and Post-Trial.
Discovery

Discovery is the formal investigation of the facts of a lawsuit, consisting primarily of exchange
of evidence and information between the plaintiff and defendant. During the discovery period,
attorneys trade written discovery requests such as interrogatories (written questions), requests to
produce documents and evidence, and requests for admission, which are requests that the
opposing party admit certain facts of the case. Discovery often includes depositions,
where attorneys formally ask questions of the parties and sometimes of third party witnesses. A
deposition is a formal question and answer session that is conducted under oath and
transcribed, which means copied word for word, by a court reporter for later use by both parties.

Motion Practice

Attorneys also engage in motion practice during the discovery period. Motion practice is the
mechanism where a party, through their attorney, petitions the court to make a decision regarding
a disputed aspect of the case. Motion practice generally involves short, targeted briefs and oral
arguments presented to the presiding judge. Motions may include requests for more time for
discovery or dispositive motions such as motions for summary judgment.

Dispositive motions are motions asking the court to rule in a party’s favor without trial.
Dispositive Motions are generally long and complex affairs, as they must show that under no
circumstances can any development in the facts support any result other than the dismissal of the
case. Courts prefer to have juries decide cases, and will find an “issue of fact”, or possible
dispute requiring examination by a jury, whenever they can. Only when both the facts and the
law converge to form an ironclad case against a party will a judge agree to dismiss it.

Trial

Once discovery has closed, all pre-trial motions have been heard and ADR is no longer desired, a
case moves towards trial. The vast majority of litigation never reaches the trial stage, and with
good reason. Trials are expensive and uncertain propositions and are something of a gamble for
both parties.

A trial is the formal presentation of a case to a trier of fact, which is usually a jury. On occasion,
attorneys will agree to a bench trial, which means that the presiding judge will make the ultimate
decision regarding liability. However, bench trials are rare in cases with any significant monetary
value. In a jury trial, the judge’s job is to rule on matters of law, while the jury decides the fact
issues in the case. The judge also ensures that case is litigated according to the rules of court.

During trial, each side takes turns presenting its case to the jury, with the plaintiff presenting first
and the defendant then taking a turn defending against the plaintiff’s allegations. Each side has a
chance to respond to any allegations raised in the opposing party’s argument occurring
immediately prior. When both sides feel they’ve presented their case, they rest their cases. The
parties then deliver closing arguments, and the judge instructs the jury regarding the laws upon
which they are to make their decision. The jury then deliberates and returns a verdict, which is
the decision in the case.
Post-Trial Litigation

Litigation continues even after a verdict is rendered. Often the form or manner in which a
monetary award is collected is disputed or subject to negotiation. Or, the losing party is unhappy
with the decision and may find a basis for an appeal to a higher court. Even if both parties accept
the jury’s verdict, there are still motions and orders and hearings that are necessary to properly
close a case. Litigation is an ongoing process, and just because a trial ends does not mean
litigation does. Litigation is a process that can be quick and to the point or can persist for years.
Other than the simplest of matters, it is necessary to retain an attorney to competently represent
or defend a party's case during litigation