GET IN TOUCH
Please contact us for more information. Our email is monitored seven days a week and we will get back to you shortly.
For most people, being involved in a legal dispute is nothing but a headache, especially if the dispute is going to court. While having competent, full service legal representation can make the process much easier, the prospect of going to trial is enough stress to be overwhelming. Court processes can prolong disputes while litigants anxiously wait for appointments and face Covid-19 backlog related delays. Alternative dispute resolution (ADR) is attractive to litigants because it offers a means of dispute resolution that avoids the courts altogether, often saving considerable time.
There are a few different ways lawyers can help their clients go about alternative dispute resolution, and the method of choice will depend on the details of the dispute and how the parties agree to seek a resolution. The most common methods of ADR include
In this article, we’ll discuss the details of each of these processes, the pros and cons of their application, and the scenarios they are best suited to. It’s important to remember that alternative dispute resolution is entirely voluntary, and the disputing parties must both agree to seek a resolution outside of the courts in order to move forward with a private settlement.
The process of mediation involves a third party known as the ‘mediator’, who works with both parties and their legal representation to come to a decision. Usually, the opposing parties sit in private rooms with their lawyers while the mediator goes between rooms to speak to each party to fully understand the situation and the interests of everyone involved. Mediation is a rigorous process depending on the circumstances of the dispute it seeks to resolve, and parties must come prepared to share all details of the dispute to the mediator. This often involves detailed financial disclosures or medical records with extensive evidence. The process is often used as a means of reaching settlement in personal injury claims or family disputes such as divorce. Mediation is informal and not binding, so it if often used in the greater process of drafting a binding agreement. Even if the mediation fails, it can help the parties to better understand each other’s positions on important issues and consider how they would like to move forward. This makes mediation a good choice for a first step in alternative dispute resolution, even for the most complex disputes.
Unfortunately, mediation does not always help parties to reach a settlement. Both parties must agree to a resolution for it to be binding, and in some cases the parties have differences which can’t be resolved through mediation. It’s not guaranteed that mediation will find a resolution that is suitable for both parties, and so there is a risk that an unsuccessful mediation takes up valuable time and money for both parties. This is a particularly important point for those seeking ADR to consider when deciding their approach, as the point of ADR for most is to save time and money by avoiding court processes.
Like mediation, arbitration involves an independent third party that is selected or agreed upon by the disputing parties to find a resolution. However, the arbitrator is tasked with making a binding decision on behalf of both parties, making the process very different from mediation. Both disputing parties put their case forward to the arbitrator for them to consider. They will carefully consider the evidence put forward by both parties to help them come to a decision. Usually, the arbitrator will meet to discuss with each party at least once if not several times before coming to a decision to make sure they fully understand the dispute.
The arbitrator’s decision is called an award, and it is binding once it has been submitted to the parties. The binding nature of the dispute is what makes arbitration attractive to many people facing legal disputes, as the decision from a professional arbitrator is likely to be fair and reasonable to both parties and often settles the dispute faster than meditation would. However, those seeking arbitration run the risk of an outcome that they are very unhappy with. If they find the arbitrator’s award very unsatisfactory, they can appeal the decision and take it to the courts. However, arbitrators are usually legal professionals like ex-lawyers and it is not often that a court will find that their decision should be entirely reversed or significantly changed in favour of the appealing party. Appealing the award also risks the courts handing down a decision that is less favourable to them than the arbitrator’s resolution, meaning that they got a worse deal and failed to save time and money by avoiding the courts.
The process of conciliation looks very similar to mediation at first glance, but the role of a conciliator has important differences from that of a mediator. A mediator’s job is to facilitate a conversation between the two parties to reach a solution, where a conciliator’s job is more involved in arriving at the specific solution. Like a mediator, conciliator is meant to facilitate the conversation between the two parties, but they also make interventions to direct the conversation and give their own advice on reaching a resolution. They often set an agenda for the meeting(s) and prompt the parties to answer specific questions which they feel will contribute to constructive conversation and resolution of the dispute. Though it is similar to mediation, conciliation offers more significant support from the third party facilitator making it attractive to individuals looking for a quick solution for disputes which are not particularly contentious.
Whether you are working with a mediator, arbitrator or a conciliator, your legal representative will be one of your most important resources during the ADR process. Parties engaging in any of these ADR processes almost always have a lawyer representing and guiding them throughout the whole process, ensuring they are properly advocated for and fully understand their rights and options. Your lawyer will be directly involved throughout every step of the ADR process, helping you to understand the legal implications of the dispute, gather and organize your evidence or disclosures, and providing coaching and support prior to and during meetings with the other party. Feeling comfortable and confident with your legal representation is the first step in successful alternative dispute resolution. If you are considering ADR as a means of solving a legal dispute, contact an experienced lawyer today. We’ll ensure you are properly advocated for and are prepared to put your best case forward to third party professionals.