Early Dispute Resolution or "EDR" is a comprehensive process for fairly and rapidly settling disputes. Most EDR methodologies build on collaborative practices that facilitate cooperation to view the dispute as a joint problem-solving endeavor. The goal of Early Dispute Resolution is to obtain value maximizing outcomes through an efficient and fair process.
There are several different methods that can be involved in EDR. Some of the various methods are discussed below:
- Negotiation
Negotiation refers to a strategic discussion, or series of discussions, to resolve an issue in a way that all parties find acceptable. In a negotiation, each party tries to persuade the other to agree with their point of view. But it is a mistake to do this before first listening and understanding the vantage point of the other party.
Negotiation skills include the ability to communicate, actively listen, control emotions, manage expectation, develop patience, be adaptable, be persuasive, make a plan, have integrity, build rapport, problem solve, and make decisions.
Participants in a negotiation should try to learn as much as possible about the other party’s interests, and the facts they are relying on, before a negotiation begins. Preparation, including understanding the strengths and weaknesses on each side, is vital. Participants should meet early in the life of a dispute to explore settlement.
- Mediation
Mediation is essentially a negotiation facilitated by a neutral third party to resolve a dispute between parties. Mediation is generally a short-term, structured, task-oriented, “hands-on” approach to negotiating a settlement between the parties.
The mediator facilitates the resolution of the parties’ dispute by supervising the exchange of information and the bargaining process. The mediator helps the parties find common ground and deal with unrealistic expectations. The mediator may offer creative solutions and assist in drafting a final settlement document.
The role of the mediator is to interpret concerns, relay information between the parties, frame issues, and define the problems. The mediator remains neutral throughout the process. The mediator does not decide the outcome; the outcome is determined by the parties themselves.
- Conciliation
Like mediation, conciliation is a voluntary, flexible, and confidential process. The parties seek to amicably settle their dispute with the assistance of the conciliator, who acts as a neutral third party. Conciliation is a preventive method to resolve conflict and it often works best as soon as a misunderstanding or dispute takes place. Parties bring in a conciliator to stop conflicts from escalating.
The conciliator will serve as a neutral third-party who plays the role of an authority figure. The main difference between conciliation and mediation proceedings is that, at some point during the conciliation, the conciliator will be asked by the parties to provide them with a non-binding settlement proposal. A mediator, by contrast, will in most cases and as a matter of principle, refrain from making such a proposal.
Conciliation allows the parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties' legal positions, but also their commercial, financial and/or personal interests. Like mediation proceedings, however, the ultimate decision to agree on the settlement remains with the parties.
- Collaborative Law
Collaborative law is a newer type of alternative dispute resolution that mainly arises in divorce and family law. Each party hires a lawyer, and along with other professionals such as financial experts or divorce coaches the parties meet to negotiate a settlement that best meets the specific needs of the parties and their children without the underlying threat of litigation. Collaborative law removes from the dispute the adversarial setting of a courtroom and instead brings in a problem-solving atmosphere of negotiations.
The voluntary process is initiated when the couple signs a contract (a "participation agreement") binding each other to the process and disqualifying their respective lawyers right to represent either one in any future family-related litigation. If a party threatens a lawsuit, the collaborative law process terminates, and the lawyers cannot participate any further in the dispute.
- Early Neutral Evaluation
Early Neutral Evaluation (‘ENE’) is a flexible way to resolve business disputes without the parties needing to resort to full-scale litigation or arbitration. Like other alternative dispute resolution methods, one of the main reasons you may wish to engage with the ENE process is with a view to saving time and money.
The parties in dispute appoint an independent evaluator to assess the strengths and weaknesses of each side’s case. This neutral, expert viewpoint is then intended to form a starting point for negotiations to settle the disagreement.
The evaluator does not decide legal issues or advocate a way of resolving matters and ENE does not result in a final decision. Instead, by indicating what the parties might realistically be able to rely on if full-blown litigation took place, the evaluator provides a valuable incentive for an agreement to be reached.
The ENE process is usually non-binding on the parties. It is also carried out on a without prejudice basis, which means that anything disclosed during the ENE process can’t later be used as evidence in court without agreement. ENE has become a popular and useful way for businesses in a dispute to get a practical view of the merits of their respective positions without spending large amounts of money on litigation.
- Facilitation
Facilitation is the act of engaging participants in creating, discovering, and applying learning insights. Facilitation usually involves a “guide on the side” who asks questions, moderates discussions, introduces activities, and helps participants learn. Facilitation is the process of moving two factions with different points of view toward an amenable resolution.
Facilitation can help a group improve how they work together, identify and solve problems, make decisions, and handle conflict. The role of the facilitator is to guide the group to work together more efficiently by creating synergy, generating new ideas, and arriving at consensus and agreement.
Facilitators will often set ground rules, such as: (1) facilitating the discussions so that each side has an opportunity to verbalize their conflict points, (2) point out any possibility of resolution, and (3) keep the discussion on track and not allow it to migrate into other issues.
The role of a facilitator is not to solve the problem, but to help the involved parties solve their own problem.
- Ombudsman
An organizational ombuds is an individual who serves as a designated neutral within a specific organization and provides conflict resolution and problem-solving services to members of the organization (internal ombuds) and/or for clients or customers of the organization (external ombuds). There are organizational ombuds in all sectors (corporate, academic, governmental, non-governmental, non-profit, etc.). Some may serve both internal and external constituencies.
An organizational ombuds provides confidential, informal, independent and impartial assistance to individuals through dispute resolution and problem-solving methods such as conflict coaching, mediation, facilitation, and shuttle diplomacy. The organizational ombuds responds to concerns and disputes brought forward by visitors to the office and may convey trends, systemic problems, and organizational issues to high-level leaders and executives in a confidential manner. Ombuds do not advocate for individuals, groups or entities, but rather for the principles of fairness and equity.
Because of the informal, neutral, confidential and independent positioning of an ombuds in an organization, they typically do not participate in investigations, play any role in formal issue resolution, produce any finding or make binding decisions, institute corrective measures, create policies, create or maintain records, or form any type of formal relationship (i.e. attorney-client).
- Dispute Review Boards
Dispute Review Boards (DRB) are used where disputes can delay and significantly increase the costs of a project. Unlike mediation or arbitration, the DRB is convened at the very beginning of the project and conducts regular meetings and visits to the project site throughout the duration of the project.
DRB is a board of impartial professionals selected by both parties at the beginning of the project to follow progress, encourage dispute avoidance, and assist in the resolution of disputes for the duration of the project. The DRB provides a mechanism to help projects to predict and handle potential problems before they occur, to provide advisory opinions on questionable or disputed matters, and to provide an alternate dispute resolution process to settle any disputes that cannot be settled between the parties to the contract.
If the DRB is empowered with the ability to render final and binding decisions upon the parties to the project, the project is virtually guaranteed to continue with a minimum amount of lost time and money that would normally be encountered when litigation is required to resolve disputes.
