Methods of Dispute Resolution
Many ways exist to resolve legal conflicts, including going to court. Methods other than the traditional court trial have become known as "Alternative Dispute Resolution" (ADR). This brochure describes several options that you or your attorney can use in order to bring about an efficient and effective resolution. The appropriate dispute resolution method must be chosen in order to have a good resolution. There are situations when going to court is the best choice. For example, court decisions are very important when there are unsettled questions of law. Other dispute resolution methods may be better when the parties want a quicker solution, when parties are interested in privacy, and particularly when parties must deal with each other in future business or personal relationships. Your attorney can help you select and arrange for the proper option.
Methods of Dispute Resolution Judicial Trial
A trial is a judicial proceeding that takes place in court. Most disputes initially appear to be headed for trial. In certain cases, there are advantages for one party or another to go to court; however, most disputes are resolved other ways. Less than ten percent of all civil cases filed are actually tried in court. Even if other dispute resolution methods are used, parties do not lose the right to a trial if the dispute is not resolved.
Administrative Agency Hearings
An administrative hearing takes place outside the court system under uniform agency procedures that regulate business and personal activities. Many types of disputes such as discrimination and workers compensation matters may be resolved in administrative proceedings. Administrative proceedings may begin with informal resolution attempts. If the dispute goes before an administrative law judge, it may be appealed to a state district court.
Negotiation is the most common method of resolving most legal disputes. It involves one party attempting to create a resolution through one-on-one conversation. Like most forms of dispute resolution, negotiation permits a variety of solutions and is done in private.
Arbitration is private. Attorneys or parties present arguments to an impartial individual or panel. The arbitrator or arbitration panel usually has expertise in the conflict area (e.g., construction, commercial contracts). The parties usually agree to be bound by the decision as if it were a court decision. In Kansas most arbitration is determined by contract.
Mediation is also private. A great many cases are resolved with mediation. Types of cases for Mediation include custody and visitation, small claims, probate, personal injury, malpractice, small business, civil rights, employer/employee and educational. Mediation is very useful when a dispute involves many questions and the parties have been unable to reach an agreement on their own or there is a continuing relationship. In mediation, an impartial mediator works with the parties to assist them in reaching a settlement. In some cases, your lawyer may represent you in the mediation, and in most situations your attorney should examine the mediated agreement to assure that your legal rights are protected and to assist in putting the agreement in writing. A growing number of attorneys are being trained as mediators. Some courts require settlement conferences that are conducted by a mediator prior to court trial in an attempt to promote settlement.
Summary Jury Trial
A summary jury trial may be privately arranged or court ordered. A relatively new procedure, it is similar to an actual jury trial except each attorney presents a summary of his or her client's evidence to a jury instead of presenting evidence through witnesses. The jury decision can be helpful in resolving a dispute or reaching settlement. Trial proceedings which might take weeks are at times resolved in a few days using this method.
This tool is most often used in complex commercial disputes. Attorneys for each side give presentations to a panel made up of people who represent each side and who have the power to make a settlement agreement. After the presentations, the attorneys step back and the clients attempt to negotiate an agreement. The clients have an opportunity to act as decision makers and to reach an agreement instead of having to rely on a court imposed decision.
Other Methods of Dispute Resolution
Other types of dispute resolution may be aimed at a specific field of business or a type of personal injury claim. Attorneys can assist in the establishment of internal grievance procedures for businesses and other organizations. Commercial contracts may be written to specify that disputes arising out of the contract that cannot be resolved directly by the parties shall be submitted to arbitration. Dispute resolution methods, properly chosen, may help your legal dollar go further and save you valuable time. Your attorney can answer your questions about dispute resolution and assist you in making the proper choice. This pamphlet is based on Kansas law and is published to provide general public information, not specific legal advice. The facts involved in a specific case determine the application of the law.
I need a lawyer, how can I find one?
Contact the Kansas Bar Association's Lawyer Referral Service. Call 1-800-928-3111 and ask for the name of a lawyer who handles domestic relations cases. For those who cannot afford a private attorney, free legal assistance to low-income people is available in all counties.
Contact Kansas Legal Services Inc. to learn of the nearest KLS field office serving your county.
Kansas Legal Services Inc.
712 S. Kansas Ave.
Topeka, KS 66603