Alternative Dispute Resolution
Very few disputes actually end with a decision from a judge, even if they find their way into a courtroom at some point or another. There are a variety of forms of Alternative Dispute Resolution (ADR) available at various points during litigation, and even before it starts. In some cases, ADR can result in significant time and cost savings for both sides, and help avoid unnecessary delay and frustration in reaching a resolution.
Mediation is a process by which a third party, neutral mediator works with both sides (often with the involvement of legal counsel) to try and guide them towards a mutually acceptable resolution. While mediators have their own unique styles, their role is to hear the position of each side and attempt to identify common ground in an effort to help them resolve some, or all, of the issues in dispute.
The key feature of mediation is that it is non-binding. Mediators might suggest a resolution, or offer their opinion on the strengths and weaknesses of either party’s case, but they do not decide the dispute. The parties retain control of the outcome. If you can’t come to an agreement that you find acceptable, you can simply walk away. For that reason, aside from the expense of the mediation process itself, mediation is relatively low-risk.
The non-binding nature of mediation can, however, be a double-edged sword. It is not usually effective where one or both parties are unwilling to cooperate or compromise. Because it is less adversarial than litigation, however, it can be useful where the parties want to maintain their relationship, be it personal or commercial. Effective mediators can manage highly emotional situations in a way that ensures constructive, rather than destructive, communications.
Like a mediator, an arbitrator is a neutral third party tasked with assisting the parties in resolving a dispute. Unlike mediation, arbitration ends with a final, binding resolution. The arbitrator essentially acts as a judge, hearing the evidence and arguments of both sides before rendering a decision on the matter. There is generally no right to appeal.
While arbitration offers a path to a swift resolution, it puts significant power in the hands of the arbitrator. The parties may have some say in the process arbitration follows, but lose control over the outcome.
Arbitration is effective when both parties want the matter decided by a third party, but would rather avoid the formality, time and (potentially) expense associated with litigation. Many complex or technical matters are also better suited for arbitration than litigation. The parties are usually free to agree on their own arbitrator, and can select someone with specialized knowledge or experience in the relevant field that a judge may not have.
Judicial Dispute Resolution
Judicial Dispute Resolution (JDR) involves a confidential, pre-trial settlement conference overseen by a judge (typically a Justice of the Court of Queen’s Bench of Alberta), with the object of either resolving a dispute and avoiding a trial altogether, or narrowing the issues in dispute.
Like mediators, judges might have their own unique approaches to JDR. Some judges treat it like a miniature trial. No witnesses testify, but each party will be given an opportunity to present evidence and make arguments. Once each side has presented its case, the judge will render a decision – or, a hypothetical decision, explaining how they would decide the case were they actually hearing it at trial.
A JDR decision is generally non-binding (unless the parties agree otherwise), but even if it doesn’t end the matter, it often assists the parties in reaching a settlement. A judge can offer useful insights into not only how they would decide the case, but why. For obvious reasons, judges are well-positioned to comment on how a case would likely play out at trial, so their opinions carry significant weight.
These summaries barely scratch the surface of ADR. Mediation, arbitration and JDR are not the only options available, and each can come in different forms. And, not to be forgotten amongst these formal processes is the simplest, and often most effective form of ADR: negotiation. The parties can resolve a dispute themselves, or through their lawyers, at any time and without the involvement of third parties.
Whether ADR might be appropriate, and in what form, depends on the circumstances of a particular case. Experienced legal counsel can assist in making that determination, and provide valuable advice about the risks and benefits that need to be considered.
By Luke Young