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Reasons to Have Legal Disputes Determined by Binding Decision
By Alan R. Gray
One of the parties to a legal dispute may simply be unwilling to resolve the dispute by agreement, for strategic reasons relating to the particular dispute or related disputes.
Even if all the parties to a legal dispute are willing to resolve the dispute by agreement through an appropriate process, they may not be able to do so because of differing perceptions of what is just or fair.
A legal dispute may arise out of recurring commercial transactions. A party to the transactions may want the dispute to be determined by the decision of a judge to set a legal precedent that will govern the transactions.
Processes for Determination of Disputes
By legislation, judges have the jurisdiction to make binding decisions to determine many types of disputes (for example, disputes arising from interpretation of contracts or wills, or from breaches of common law or fiduciary duties). Those decisions are made in litigation between the parties to the dispute.
Where the determination of a dispute by judge would depend entirely on the application of law to facts that are not in dispute, the parties might agree to be bound by the opinion of a neutral lawyer who has expertise in the applicable area of law.
By legislation, administrative tribunals have jurisdiction to make binding decisions to determine other types of disputes (for example, disputes relating to the development of real property, workers compensation, or human rights).
Parties may agree that disputes between them will be determined by the binding decision of an arbitrator. Contracts often include provisions for the arbitration of disputes arising out of the contracts (for example, collective bargaining agreements, unanimous shareholder agreements, or construction or supply contracts). Parties may also agree to arbitrate a dispute after the dispute occurs.
Processes for Resolution of Disputes
The processes that can be used to resolve a dispute by agreement of the parties include:
(a) Negotiation;
(b) Facilitation;
(c) Neutral evaluation;
(d) Private mediation; and
(e) Judicial dispute resolution by:
(i) Mini-trial; or
(ii) Judicial mediation.
Negotiation
In a negotiation, parties communicate with each other directly or through their respective representatives (often lawyers), ideally with a mutual commitment to agree on a resolution of the dispute on the basis of what is just or fair (or both). Lawyers can often assist their clients to achieve a resolution of a legal dispute by providing objective assessments of their rights on the basis of relevant facts and applicable law.
Facilitation
In facilitation, a neutral party obtains information from each party to the dispute individually, and then conveys that information to the other parties to the dispute. A facilitator may be able to help manage emotions that could be an impediment to a just or fair resolution of a dispute. A facilitator may also be able to help the parties to avoid becoming entrenched in their positions.
Neutral Evaluation
In a neutral evaluation of a legal dispute, a neutral lawyer provides the parties to the dispute and their lawyers with an objective assessment of evidence (if the parties do not agree on relevant facts) and a legal opinion (if the parties do not agree on the applicable law). The neutral lawyer’s assessment of the evidence and legal opinion are not binding on the parties to the dispute. However, the neutral lawyer can often assist the parties to resolve their dispute by providing a realistic view of the strengths and weaknesses of their positions (on the facts and the law).
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