BLANEY McMURTRY LLP | ALTERNATIVE DISPUTE RESOLUTION | ADVANTAGES & DISADVANTAGES OF DISPUTE RESOLUTION PROCESS
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Advantages and Disadvantages of Dispute Resolution Processes
In order to select the most appropriate process, it is important to understand and appreciate the advantages and
disadvantages of the various dispute resolution processes.
In the outline of advantages and disadvantages of dispute resolution processes provided below, a simplified
spectrum of processes from consensual, informal (negotiation and mediation) to formal, adjudicative (arbitration
and trial) is used:
CONSENSUAL PROCESSES – Negotiation and Mediation
ADVANTAGES DISADVANTAGES
Speedy and informal resolution of disputes; generally less stressful Can be used as stalling tactic
Confidentiality and the avoidance of publicity Parties not compelled to continue
negotiations or mediation
May improve communication between parties thereby preserving or enhancing
relationships between parties
Do not produce legal precedents
High degree of party control:
Parties create own process and craft own agreement
Exclusion of pertinent parties weakens
final agreement
Flexibility: resolutions can be tailored to the needs and underlying concerns of
the parties and can address legal and non-legal issues as well as providing for
remedies unavailable through adjudicative processes
Parties may have limited bargaining
authority
Legal and/or other standards of fairness can be used in crafting agreements Little or no check on power imbalances
between the parties
Increased satisfaction and compliance with settlements when parties have directly
participated in crafting agreements
Disclosure of information and
truthfulness of communications depend
on good faith of parties--mediation
cannot compel good faith
May assist in clarifying and narrowing issues, and fostering climate of openness,
co-operation, and collaboration, even if a settlement is not reached
In negotiation -- lack of neutral may
reduce chance of reaching agreement,
particularly in complex disputes or those
involving multi-parties