Dispute resolution
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Dispute resolution or dispute settlement is the process of resolving disputes between parties. The term dispute resolution is sometimes used interchangeably with conflict resolution.[1]
Prominent venues for dispute settlement in international law include the International Court of Justice (formerly the Permanent Court of International Justice); the United Nations Human Rights Committee (which operates under the ICCPR) and European Court of Human Rights; the Panels and Appellate Body of the World Trade Organization; and the International Tribunal for the Law of the Sea.[2] Half of all international agreements include a dispute settlement mechanism.[3]
States are also known to establish their own arbitration tribunals to settle disputes.[2] Prominent private international courts, which adjudicate disputes between commercial private entities, include the International Court of Arbitration (of the International Chamber of Commerce) and the London Court of International Arbitration.[4]
Methods
Methods of dispute resolution include:
- lawsuits (litigation) (legislative) [5]
- arbitration
- collaborative law
- mediation
- conciliation
- negotiation
- facilitation
- avoidance
One could theoretically include violence or even war as part of this spectrum, but dispute resolution practitioners do not usually do so; violence rarely ends disputes effectively, and indeed, often only escalates them. Also, violence rarely causes the parties involved in the dispute to no longer disagree on the issue that caused the violence. For example, a country successfully winning a war to annex part of another country's territory does not cause the former waring nations to no longer seriously disagree to whom the territory rightly belongs to and tensions may still remain high between the two nations.
Dispute resolution processes fall into two major types:
- Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome.
- Consensual processes, such as collaborative law, mediation, conciliation, or negotiation, in which the parties attempt to reach agreement.
Not all disputes, even those in which skilled intervention occurs, end in resolution. Such
Dispute resolution is an important requirement in international trade, including negotiation, mediation, arbitration and litigation.[7][full citation needed]
Legal dispute resolution
The
The most common form of judicial dispute resolution is litigation. Litigation is initiated when one party files suit against another. In the United States, litigation is facilitated by the government within federal, state, and municipal courts. While litigation is often used to resolve disputes, it is strictly speaking a form of conflict adjudication and not a form of conflict resolution per se. This is because litigation only determines the legal rights and obligations of parties involved in a dispute and does not necessarily solve the disagreement between the parties involved in the dispute. For example, supreme court cases can rule on whether US states have the constitutional right to criminalize abortion but will not cause the parties involved in the case to no longer disagree on whether states do indeed have the constitutional authority to restrict access to abortion as one of the parties may disagree with the supreme courts reasoning and still disagree with the party that the supreme court sided with. Litigation proceedings are very formal and are governed by rules, such as rules of evidence and procedure, which are established by the legislature. Outcomes are decided by an impartial judge and/or jury, based on the factual questions of the case and the application law. The verdict of the court is binding, not advisory; however, both parties have the right to appeal the judgment to a higher court. Judicial dispute resolution is typically adversarial in nature, for example, involving antagonistic parties or opposing interests seeking an outcome most favorable to their position.
Due to the antagonistic nature of litigation, collaborators frequently opt for solving disputes privately.[8]
Retired judges or private lawyers often become arbitrators or mediators; however, trained and qualified non-legal dispute resolution specialists form a growing body within the field of alternative dispute resolution (ADR). In the United States, many states now have mediation or other ADR programs annexed to the courts, to facilitate settlement of lawsuits.
Extrajudicial dispute resolution
Some use the term dispute resolution to refer only to
See also
- Collaborative divorce
- Conflict resolution research
- Diplomacy
- Dispute pyramid
- Investor-state dispute settlement
- National Arbitration Forum
- Party-directed mediation
- Peacekeeping
- Restorative justice
- UN Peacemaker
References
Further reading
- Sherwyn, David, Tracey, Bruce & Zev Eigen, "In Defense of Mandatory Arbitration of Employment Disputes: Saving the Baby, Tossing out the Bath Water, and Constructing a New Sink in the Process", 2 U. Pa. J. Lab. & Emp. L. 73 (1999)
- ISBN 0-14-029634-4
- Alés, Javier y Mata, Juan Diego " manual práctico para mediadores: el misterio de la mediacion" éxito Atelier. Barcelona 2016