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Interests and Positions of the Parties
By Alan R. Gray
The interests of the parties to a dispute have been defined as their “needs, wants, fears, or concerns which will be considered in forming the agreement”. The parties to a legal dispute may simply want to resolve the dispute on the basis of what they perceive to be their legal rights. However, they may have concerns that go beyond those rights. For example, they may be concerned about:
(a) Maintaining or even improving their personal, professional, business or commercial relationships;
(b) Increasing their independence;
(c) Protecting or even enhancing their personal, professional and business reputations;
(d) Improving their financial opportunities; or
(e) Maintaining or even improving their personal or financial security.
Positions have been defined as “the solutions which each party perceives will satisfy their interests.”
Management of Disputes
Effective management of legal disputes requires:
(a) Consideration of the potential for disputes to arise out of contractual relationships;
(b) Contractual provisions for resolution (by agreement) or determination (by binding decision) of potential disputes, where those provisions would likely result in efficient and economical resolution or determination of the disputes on mutually acceptable basis;
(c) Early recognition of existing disputes;
(d) Thorough but efficient investigation of the facts that underlie the dispute;
(e) Objective assessment of the rights of the parties to the dispute;
(f) Consideration of the interests of the parties that go beyond their legal rights;
(g) Consideration of whether the dispute should be resolved by agreement or determined by a binding decision; and
(h) Selection of the most effective process to resolve or determine the dispute.
Reasons to Resolve Legal Disputes by Agreement
Usually there are compelling reasons to resolve a legal dispute by agreement, if only to avoid:
(a) The expenditure of time and money on litigation or arbitration; and
(b) Negative effects on the relationship of the parties, or their reputations, caused by:
(i)The adversarial strategies and methods of litigation and arbitration; and
(ii)The inevitable result of one of the parties being "the winner" and the other being "the loser" as a result of the binding decision of a judge or arbitrator.
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