Dispute Resolution: ‘alternative’ OR the new normal?

The benefits of non-litigious dispute resolution processes are well established. As a course of action for remedying conflict, non-adversarial methods are steadily gaining acceptance not only as viable practice, but perhaps as best practice. Processes like mediation, collaboration, and negotiation have traditionally been coined ‘alternative’ in both the literature and the legal profession. Yet these out of court processes have grown so significantly in use and variety that the very word ‘alternative’ in Alternative Dispute Resolution feels counterintuitive. Because they are now so mainstream, the better term to aptly describe these out of court processes is arguably ‘Primary Dispute Resolution’ (PDR).

Primary Dispute Resolution

PDR describes a wide range of processes that can assist in resolving conflict through an impartial, out of court context. PDR processes exist on a spectrum of formality ranging from counselling – the least formal, through to negotiation, mediation, collaboration, conciliation and finally, arbitration – the most formal.

Limits Of Litigation

We believe that litigation should always be the last resort option for dispute resolution. Litigation is rigid and time consuming as well as emotionally and financially taxing. As a process, it is generally limited in its capacity for creative and needs-based problem solving. Litigation is also highly combative. Sadly, it is still the ‘measure’ of our adversarial system which only encourages parties to fight one another whilst foregoing preservation of their relationships. Finally, litigation is lengthy and consequently – expensive, with parties often paying up to 6 figure fees and enduring waiting times of up to 2 years.

Family Courts are groaning under the weight of cases before them. Yet fewer than 5% of matters actually go all the way to a final hearing. And for the number that do, many litigants will end up being directed to out of court dispute resolution services, when they could have engaged those services independently from the beginning. Surely from a utilitarian perspective alone, best practice would suggest that primary dispute resolution be the status quo, with litigation being a rare, last resort option for only the most intractable of cases.

In family disputes, legal practitioners should work to help parties build a sustainable future. Primary Dispute Resolution should be approached as a problem solving exercise that incorporates other professionals such as counsellors, psychologists, business advisors, doctors, financial advisors and mortgage brokers. Taking a pragmatic approach that is non-combative gives people a much better chance of moving forward in their lives with respect and dignity.