A Closer Look at ADR
When you feel that someone has wronged you, whether that’s another person, a company, or even a government agency, it’s not unnatural to want your day in court.
Most of us have been raised largely on American TV and movies, and we have a sincere belief that justice happens within a courtroom. We hire a lawyer, everyone gets to plead their case before a judge or judge and jury, and then a decision is made.
While we’ve all seen lawyers on American TV shows delivering that passionate speech at the end of the episode that sways the Court’s opinion, real life in Canada is a very different story.
The greatest difference is that, in Canada, almost 98% of civil cases settle outside of court. The off-camera reality is that the process of litigating a dispute through the Court system, including possible appeals of a decision, can take years. It also involves financial expenses which few Canadians can afford out-of-pocket, especially if the dispute is long and drawn-out.
However, just because something settles before reaching court does not mean that justice was not delivered. In fact, the court system today puts several measures in place to encourage settlement before disputes ever see the inside of a courtroom. Along with the formal litigation process, there is also an entire body of settlement known as alternative dispute resolution, or ADR.
This article will look at what ADR actually entails, and how such methods can help save you time, money, and unnecessary stress.
If you and the opposing party in a dispute cannot work things out on your own, lawyers can step in to help resolve the dispute for you. However, much like your initial efforts, the lawyers will often begin by trying to negotiate a resolution. Lawyers recognize that a negotiated, smooth resolution is usually the best outcome for any client because of the time and money that it can save.
Lawyers often have an easier time negotiating between each other because neither is emotionally involved in the dispute – they look at resolution with a logical perspective, ensuring that their client is treated fairly and that the parties remain as civilized as possible. Negotiating via lawyers often takes the form of emails, letters, telephone calls or meetings between both sides, without or without the clients’ presence.
Remember though that a lawyer cannot take any action without your permission. They may recommend a settlement, or a path towards a smooth negotiation, but the choice of whether or not to accept is ultimately yours. Lawyers will always seek their instructions from you before proposing or agreeing to any form of a deal.
Mediation has become an increasingly common method of dispute resolution. Instead of lawyers negotiating between themselves, a mediator is a neutral third-party who is trained to assist in dispute resolution, and who can help work to bridge the gap between the two sides to reach a negotiated resolution.
Every mediator works differently, depending on their style and the nature of the dispute. If the disagreement is mostly financial, the mediator might help push both sides towards a middle ground number to help split the difference between offers. Some mediators like to start by bringing parties together in the same room, whereas others keep everyone in completely separate spaces.
Mediation is mandatory in some jurisdictions like Toronto, but it may be a great idea no matter what you’re trying to resolve, as mediation is typically more cost effective than going to court. It is also important to note that mediation is a private process – settling means agreeing to discontinue any court action, but if you cannot settle at mediation then you can still proceed to court undeterred.
Or you may agree to a combined option of Mediation-Arbitration. If the mediation fails, then the parties in this form of ADR agree to use an arbitrator to decide the matter, or the same mediator if they have been trained in how to do both.
Imagine being able to hire a private judge. That’s effectively what arbitration is – both parties have the power to hire a sort of private judge to resolve their matter. Think of arbitration as a miniature court proceeding. Much like a trial, an arbitration can last for several days, involve questioning witnesses, and other elements that are similar to a trial.
The difference is that at the end of hearing and reviewing all of the evidence, the arbitrator (who has been highly trained in this sort of work) will issue their ruling, which is binding upon both parties. While there may be some methods to appeal an arbitration decision, usually an arbitrator’s word is the final say.
While arbitration can often move quicker than the court process, the other benefit is that it can keep things out of a courtroom. Courts can be unpredictable, where you often don’t know the judge’s background or their expertise in the area of your dispute and the matter becomes one of public record. Instead, arbitration lets you stay out of the courtroom, helps you to maintain your privacy and allows your matter to be resolved by someone who has expertise in dealing with similar situations.
Collaborative Family Law
Yes, family law can be contentious, but it doesn’t have to be if both parties are looking to sort things out smoothly. Instead of both sides, each represented by their own lawyer, butting heads, collaborative family law involves both parties working together (“collaboratively”) with their respective lawyers in a non-adversarial manner, along with other specialists as needed (financial specialists, social workers, etc.) to help resolve matters.
Collaborative family law is a completely voluntary process. It might not be right in some cases, such as where there has been domestic violence, substance abuse, or a history of mental illness. And not all lawyers offer this option. Yet for former partners who are looking to cooperate and seeking amicable arrangements, it can be a great path forward.
Collaborative family law makes sure that the former partners are ultimately in charge of their own resolution. Each partner is encouraged to speak openly and honestly, and to respect each other’s feelings and viewpoints.
While these are some of the most common methods of dispute resolution outside of a courtroom, they are not the only methods available. Even if you are moving through the court process for litigation, there may be multiple case and settlement conferences (meetings with a judge outside of court) where you and the other side and the lawyers will attempt to resolve things before trial.
Also, just because one method of dispute resolution does not work on the day of, that does not mean that all hope is lost. Negotiation may take some time, and involve some give-and-take before resolving. The lawyers may speak with their clients after and agree to settle days or weeks later. You may also agree to solve some issues at a mediation for example, but may still need to go to court to resolve others.
Disputes may be inevitable, but don’t think that ‘a day in court’ is your only road to resolution. Contact Lamers Law today to set up a no-obligation consultation and learn more about the dispute resolution process, and which steps may make the most sense in your situation.