In today’s modern and diverse world, many conflicts are always erupting in our daily lives. The conflicts arise from many different aspects of our lives, for example, family, school and in business, however, the majority of the people usually prefer to resolve their conflicts peacefully and fairly without any violence or injustice on either party in the litigation. In addition, it is cheaper and less stressful for the parties involved. In society, there are various mechanisms available through which parties can use to solve their dispute. (Atlas 2000).
The most common is the traditional system that involved the civil justice system. Under this system, there is a trial that involves a judge, the litigants, and a jury process. The litigants put their case forward whereby the jury decides who is right or wrong and who wins the case and the remedies available to the party aggrieved. In this method the parties will use the courts to resolve the dispute and give a final decision. Business disputes are often resolved using the civil justice system. Parties to the dispute file a suit in a court of competent jurisdiction following the rules of the civil procedure laid down by the court. They then provide the pleadings followed by evidence to support their claims which are provided by the parties’ attorneys. After the court has heard the case from the parties, the judge or the jury will enter into a judgment against one of the parties who they find at fault thus, only one party will prevail (Miller 2008).
Apart from the traditional methods, there are several other alternatives for parties in dispute to resolve conflicts that are arising in their midst. These other disputes resolving mechanisms include negotiation, mediation, arbitration and alternative dispute resolution commonly referred to as ADR. These processes are usually the most appropriate especially to businesses as they are less costly and save a lot of time that would be spent in courts. In addition under these methods, the resolution arrived at is usually fair, reasonable and more often than not offers justice to both parties involved in the dispute. It, therefore, results in resolutions that are usually referred to as win-win solutions in the process after. (Miller 2008).
In all disputes, the most desired solution by all parties involved includes settlement and a compromise arrived by the parties. 95 percent of cases filed do settle and only a small percent do go to trial. These other disputes resolution methods are more ideal for dispute settlement and are usually encouraged by the justice system since they are faster thus the litigants can arrive at a settlement earlier with less legal costs than what the traditional methods would have required of them to do. In addition some of the courts have made it mandatory for litigants to first pursue alternative forms of dispute resolution before filing suits in courts (Huber 1996).
Therefore whenever disputes arise in business and communication between the parties involved breaks down, the parties involved usually have several options in which they can choose to use to get the dispute solved and get a lasting result. Firstly, they can choose the negotiation method.
Negotiation is usually the most simple and basic method of settling disputes because it involves a series of communications back- and –forth between the parties with a goal to achieve the desired solution between the parties (Pratt 2000). Under this method there are various methods in which the parties can choose to negotiate. They can choose to either to negotiate directly or they can hire a third party usually an attorney who negotiates directly with the other parties on behalf of one party. In addition, there are no specific procedures for the parties to follow hence providing a very flexible approach to solving the disputes as parties can negotiate at their own time and place. The most crucial issue is that both parties remain calm and respectful of each other as each party is allowed to put their case forward. However business disputes are usually negotiated in board rooms or in offices as opposed to other forms of disputes which can be negotiated in informal places like living rooms.
Negotiation allows the parties to engage directly in the problems affecting them thus as they negotiate each party tries to get what is best for him and the prosperity of his business while at the same time putting into consideration the wishes and interests of the other party. In addition, a negotiated business contract can also be enforced legally thus showing the importance of carrying out negotiations under utmost good faith. In addition negotiation as a form of resolving business disputes can be used at any stage of the dispute resolution process either before the commencement of a trial, during the trial, after the trial or during appeals (Barron 2003).
Another form of business resolution is mediation which is usually used when negotiations fail. This is where a third party who is usually impartial assists in communication and in bringing the parties into a consensus. The third party is usually known as a mediator and his work is primarily to reconcile the parties thereafter they can arrive at an agreement which they fill respects their interests and wishes without infringing on the other parties interests. In this method the mediator is the one who manages the process but he does not make a decision on behalf of the parties but merely facilitates the parties to reach a mutual agreement acceptable by both parties (Nayler 2006).
The mediator will start by describing the procedure to be used and laying down the ground rules to be followed by all those concerned. The parties can also put their own views and suggestions regarding the dispute which usually assists the mediator in laying out the procedure to follow. Through mediation, each party has a chance to understand the other party’s view on the dispute through the mediator as he separately holds the talks with the parties. Under this process the mediator is usually in a position to address the factual issues from the emotional issues and also has the opportunity to get legal advice on the issue. The mediation process often involves meetings in the mediators’ office or a place where the mediator feels will serve both parties fairly (Berger 2006).
Mediations can result in very creative and applicable solutions to both parties which could not be availed in courts. For example, if one owes money to the other party and cannot pay for it, after mediations they could reach a settlement whereby an item will trade in place of the money owed. This settlement cannot be arrived at in a court of law and the judgment entered would normally be adverse to the party in debt. After an agreement has been accepted it will be reduced into writing whereby it can become a contract and be enforced legally (Agusti 2008).
It is also advisable that parties consult with their attorneys before finalizing an agreement to ensure that they are fully aware of their actions and thereby make informed decisions that do not infringe on their rights and liberties. In cases where mediations fail, the parties can pursue other avenues of justice however most parties uphold mediated agreements as they are usually involved in arriving at the final decision. Just like negotiations, mediation can also be used at any stage of the dispute, either before the trial, during the trial, after the trial or during appeals.
Mediators are usually attorneys or other types of professionals who provide their services for a stipulated fee. As there are different types of business disputes for example real estate disputes, consumers and merchants disputes, it is advisable that when parties are choosing a mediator, they should choose a mediator who has knowledge and experience in the subject matter of the dispute. Hence parties should check their experience, credentials and get references from other businesses that have used the process before. In addition, the District mediators act provides a guideline for which qualified mediators adhere to in their work and the statutory qualifications and standards they should meet. Thus for parties to ensure that they get the best mediation service they should ensure that their mediators meet the above conditions (Weiss 2008).
For parties who cannot get the fees to pay mediators, there are free mediation services provided by volunteers. These mediators are usually assigned to mediate on a certain case by the program administrators and have proved to be efficient throughout the country. In addition, the courts also provide the service through the courts’ program known as court-sponsored mediation whereby the parties with their attorneys’ assistance choose a mediator who will provide the service to them thus saving time and costs associated with the trial process.
In business solving disputes there is the arbitration method. It involves parties putting forward their dispute issue to another person who is impartial often known as an arbitrator, for him to decide the issue. The arbitrator will control the process by providing the guidelines and rules to be followed in the process. He also listens to views from the parties and makes a decision. Just like in traditional trial processes, only one party will succeed while the decisions cannot be appealed as would happen in a trial (Weiss 2008).
Arbitrations are usually conducted informal settings with all parties physically present. The parties are allowed to air their views and provide evidence to support their claims. In certain cases, the parties may agree to provide a framework that they will follow if they feel that the arbitrator’s procedures do not address their needs. In addition to the process, the arbitrators can be more than one. Decisions arrived at by the arbitrators can be bidden if initially, the parties had agreed to be bound by the decision reached to settle a dispute. Therefore decisions arrived at cannot be appealed. In instances where the decision arrived at is non-bidding, the decision can become bidding if the parties agree to it, therefore, making the resolution of the dispute easier for the parties (Miller 2008).
Arbitration services are usually offered by attorneys or other different professionals who know arbitrating disputes. On many occasions, the attorney will be the one to choose the arbitrator based on the knowledge of the arbitrators on the subject. Also, the services can be offered by courts whose arbitration decisions are not bidding thus the parties can proceed to trial if they feel the dispute was not sufficiently resolved (Nicholas, 1996)
Tribunals can also be used in solving business disputes whereby the parties forward their case to a tribunal committee that is set up by the State. Tribunals are usually run by officers of the court and other professionals who are competent in certain types of issues. Different types of business tribunals deal with specific disputes. The tribunals also follow procedures that are different from each other and depending on the tribunal; some decisions are final while others can be appealed.
Thus the method that the parties choose in resolving their business disputes will depend on their needs and the nature of the dispute. They will also put into consideration, the legal cost, duration of the procedure, and the confidentiality of the matter. The most crucial issue will be if the parties want to decide the matter on basis of the law, business doctrines, or resolutions based on just practical, and fair means. Hence with a clear understanding of the options available for business disputes resolutions, parties will choose the best option that addresses their needs (Costello 1996).
Agusti F. 2008, International Business Law and Its Environment, Cengage learning, Boston ,MA.
Atlas N & Huber S. 2000, Alternative dispute resolution, American Bar association, Washington DC.
Berger K. 2006, Private dispute resolution in international business, Kluwer law international, New York, NY.
Barron M. 2003, Controlling conflict, CCH Inc, Chicago, IL.
Barron M, & Anderson P.2003, The fundamentals of business law, McGraw –Hill, Melbourne, Australia.
Costello E. 1996, Controlling conflict, CCH Inc, Chicago, IL.
Huber W. 1996, strategies for law and business, Anderson co. Humboldt, IA.
Miller R. 2008, Fundamentals of Business Law, Cengage Learning, Boston , MA.
Nayler P.2006, Business law in the global market place, Butter worth-Heinemann, Manhattan, NY.
Nicholas k. 1996, The legal environment of business, Prentice hall, Denver, CO.
Pratt S.2000, The lawyer’s business valuation handbook, American bar Association, Washington DC.
Weiss, J. 2008, A Stakeholder and Issues Management Approach, Cengage learning, Boston, MA.