Interacting with others is part of most everyone’s daily life, and usually what makes it worthwhile.
At times, in business, we enter into agreements with others by creating contracts, to clarify expectations, responsibilities and obligations.
This is most often an effort of good faith and intended to protect both parties (though usually favoring the party writing the contract).
However, while good intentions may be present at the time of entering an agreement, inevitably there are times when two parties do not see eye to eye in regard to the way that agreement is interpreted, for any number of reasons.
It’s during these times when an experienced attorney can assist in representing your interests while hopefully arriving at a solution that is satisfactory to all parties.
Conflict can be stressful; but the right choice of attorney can ease that stress and promote your best interest in ways which do not necessarily have to involve going to court.
Three common ways to address contractual disputes without formal litigation are:
- Mediation
- Arbitration
- Collaborative Law
Mediation
With mediation, both parties agree to meet with an objective third party, trained in the art of compromise. This person may be an outside attorney or perhaps a retired judge. The mediator should be a good listener and be able to relate to opposing views with equanimity.
A mediator will not “dictate” a solution or make a judgment, but rather, he or she will assist the parties in reaching a resolution that addresses the major concerns and is satisfactory to each.
This may be one of the times when this adage applies: a good compromise results in each party walking away with a feeling of not getting everything they want; but getting what they need to feel that a fair solution was reached. Attorneys for each party may attend a mediation, along with their clients; and the agreement reached at a mediation becomes a new contract, enforceable by law.
This option is often less expensive than traditional litigation and can offer other advantages as well, such as allowing the parties to be involved directly in creating their compromise and affording them ease of scheduling at a mutually agreeable time and place, as opposed to following a court-determined date, time and location.
Arbitration
Another option for resolving contract disputes is arbitration.
This process is similar to mediation, however, in this case, the arbitrator does issue a decision that is legally binding.
The process of arbitration typically occurs more quickly than a court date might be set; and both parties must agree to participate, either at the time when a dispute arises, or possibly by a clause written into the initial contract, as an “agreement to arbitrate.”
To initiate an arbitration, the complaining party usually sends notice to the other party stating the basis for their complaint and requesting arbitration.
Time for a response is given; and then an arbitrator is selected as well as a time and location where the hearing will take place.
Decisions may be made by a panel of arbitrators, or one individual, and the rules of the arbitration may vary widely, depending on the terms set forth in the contract between the parties.
This particular procedure is similar to a courtroom trial, in that witnesses may be called and evidence may be given.
Again, depending on the terms of arbitration, the ruling of the arbitrator(s) may either be final, or the parties may have the option to appeal.
Collaborative Law
A third option, other than formal litigation, is something called collaborative law.
As the name would indicate, in this case, attorneys for each party agree to resolve matters without litigation and instead meet to discuss matters without the presence of a judge.
In this case, the ability to set terms of a settlement lay exclusively with the lawyers and their clients.
Rules to guide the collaborative process are set by the parties involved, and both the process and the terms of settlement remain confidential.
Ultimately, if none of these options offer an acceptable resolution, litigation is also available. In each case, a qualified attorney can offer support and guidance.