What is Alternate Dispute Resolution (ADR)?
Alternate Dispute Resolution resolves disputes between two or more parties without using the Courts. ADR involves a variety of methods, which may include:
These options give the parties the opportunity to resolve disagreements between themselves without having to spend the significant amounts of time and money involved with going to Court (known as litigation). The New Code of Civil Procedure requires all parties to consider all ADR options before going to Court and litigating. If no ADR method is possible, the parties still have the option to go to Court and litigate.
Is ADR always recommended?
ADR is always worth exploring because many of these methods can help our clients avoid the significant costs, delays, and wasted time associated with going to Court. Additionally, the New Code of Civil Procedure requires all parties to consider all ADR options before going to Court and litigating. However, these methods are not guaranteed to work in every case. There are some cases or some parties who make it impossible to resolve a dispute without going to Court because they are not prepared to act or to negotiate reasonably. Therefore, ADR is always worth exploring, but it cannot always be recommended as the best method of resolving every dispute.
Are there forms of ADR which mean that parties cannot go to Court?
Yes. Arbitration and mediation-arbitration are methods which mean that parties cannot go to court.
In arbitration the parties agree to submit their dispute to a person or panel whose decision will be final and without appeal. This means that the decision cannot be appealed, and can only be revised by the Superior Court if it contains a severe error (which is a high bar to reach).
In mediation-arbitration the parties submit their dispute to a person who will attempt to reach a settlement between the parties. If the parties cannot agree on a settlement, the mediator-arbitrator will then render a decision which is binding upon the parties.
Once parties agree to mediation-arbitration or arbitration, they cannot turn to the Courts to resolve their dispute, unless the final decision contains a severe error that entitles them to demand judicial revision of the decision.
If the case is not going to Court, should I still have my own lawyer?
Generally, yes. Lawyers can help their clients with ADR in a number of ways, including
For these reasons we generally recommend that clients be represented by a lawyer for ADR. Additionally, this means that if the dispute cannot be resolved through ADR, the client will have the benefit of starting the litigation process with a lawyer who is completely familiar with your goals and your case.
What is mediation?
In mediation parties engage a mediator to hear all parties’ positions and help the parties arrive at a solution that they can all agree to. Mediation is nothing like litigation. The mediator does not have the power to decide anything. The objective of mediation is for parties to arrive at an agreement. If any of the parties do not wish to arrive at an agreement, there is nothing that the parties or the mediator can do to force any party that does not wish to agree.
Sometimes parties may be eligible for a mediator who is part of a publically provided service which is free of charge for the parties. However, even if eligible, parties may wish to engage their own mediator in certain circumstances. For example, parties may wish to hire their own mediator if the dispute between them is particularly complex/specialized or if the amounts at stake are significant.
What is arbitration?
In arbitration the parties agree to submit their dispute to a person or panel whose decision will be final and without appeal. This decision is final and without appeal. This means that the decision can only be revised by the Superior Court if it contains a severe error (which is a high bar to reach). Arbitrator’s decisions are rarely reversed. An arbitration decision means that parties cannot bring the same disputes before the Courts or appeal the arbitrator’s decision.
The arbitration process resembles a trial in the following ways:
What is mediation-arbitration?
Mediation-Arbitration is exactly what it sounds like: a combination of mediation and arbitration. In mediation-arbitration the parties submit their dispute to a person who will attempt to reach a settlement between the parties. If the parties cannot agree on a settlement, the mediator-arbitrator will then render a decision which is binding upon the parties.
What is negotiation?
In negotiation parties or their attorneys attempt to resolve the dispute between the parties without going to Court. In order for a specific dispute to be negotiated successfully, the parties to that specific dispute must agree to the settlement that is reached. This resolves the dispute between the parties.
What is dispute prevention?
Dispute prevention is preventing disputes from occurring in the first place. Lawsuits and litigation are often extremely costly in both time and money. Dispute prevention helps companies and individuals take proactive steps to help avoid disputes from occurring. Dispute prevention includes a wide range of solutions that can be customized to the needs of each company or individual. The general idea behind dispute prevention is that by being aware of where a company’s/individual’s weak points and exposure to litigation lies, they can then take steps to fix these areas before they experience problems.
What is conciliation (judicial mediation)?
Conciliation (judicial mediation) is mediation offered by the Court or an administrative tribunal that is supposed to be hearing the case. The goal of the conciliation process is for parties to come to an agreement; conciliation is not intended for the parties to litigate the dispute between them. In Québec, as of January 2016, lawsuits filed before the Court give the parties the right to opt for a conciliation sessions that is handled by a Judge and that is free of charge for the parties. The conciliation does not oblige the parties to come to an agreement. If no agreement is reached, the Judge who oversaw the conciliation does not decide the case. Not only can parties be represented by their lawyers, it is recommended that lawyers play a major role in the conciliation process.