This articles discusses procedures for resolving disputes between private individuals, and between private individuals and the state.
Consensual and Adjudicatory Dispute Resolution
Although the conventional classification of dispute resolution procedures is litigation, arbitration and ADR a more natural categorization would be between consensual and adjudicatory methods of dispute resolution
Each of those processes has its strengths and weaknesses. Some are more suitable for some types of dispute resolution than they are for others. They should not, however, be regarded as alternative or competing processes. Different methods are often used to resolve different issues of the same dispute at different stages.
There are essentially two consensual methods of dispute resolution, namely direct negotiation and mediation. There are also two negotiation techniques, positional negotiation or hard bargaining and principled negotiation or consensus building. Mediation is a development of principled negotiation.
In their well-known book, "Getting to Yes: Negotiating Agreement without Giving in", Roger Fisher and William Ury of Harvard Law School contrasted "positional negotiation", where parties trade their advantages for concessions from the other side, with "principled negotiation", where they look for solutions based on shared interests. Principled negotiation involves separating people from the problem, focussing on interests rather than positions, inventing options for mutual gain and insisting on objective criteria.
Jane Lambert >