Most legal disputes never result in a claim being filed in court. Of those disputes that do go to court, very few of them—perhaps about 5%–actually go all the way to trial. Even fewer people are satisfied with the time and costs, sometimes over many years and thousands and thousands of dollars, to get a result that doesn’t always make the winner happy.
Alternative dispute resolution offers people ways to reach a resolution to even the most complex legal disputes while saving time, money, and stress. It also puts the parties in control of the process to set their own rules and schedules for resolving disputes, instead of being controlled by the formalities of court procedures and long waiting lists for court dates.
There are three basic forms of alternative dispute resolution: mediation, arbitration, and mediation-arbitration. Each have their own benefits depending on the type of dispute and what parties want out of the process.
In mediation, parties will choose an impartial person to help them reach a mutually satisfactory resolution to their dispute. This person does not have to have legal or dispute resolution training, although such training and experience may be helpful.
A mediator cannot impose a resolution but can offer recommendations and guidance to the parties to help them settle matters, and act as a go-between where communication between the parties has become strained or broken down.
The mediation process is usually relatively informal and allows parties a better chance to walk away with an agreement and even a repaired relationship. It is also private and confidential and should it fail, generally what was discussed at mediation cannot be revealed in court.
If the parties have already brought a claim in Superior Court in Toronto, Ottawa or Essex County, the court will require them to attend mandatory mediation within 180 days after the defence has been filed. The process is more formal—the parties must choose a mediator, file statements of issues setting out their positions on the case, and attend with their lawyers (if represented) with full authority to settle the case at the mediation. The court can throw out a case and/or order costs if a party does not attend or is not prepared for the mediation, which forces them to take the mediation seriously and encourages settlement.
Arbitration offers the finality of an impartial decision with less of the time, cost and formality involved in litigation.
The parties may select a single arbitrator or have a panel of arbitrators hear and decide their dispute. The parties also have more control of the process as they can set the schedule, determine what information and evidence needs to be exchanged and submitted, and how evidence will be received. Effectively, the parties make their own court.
Arbitrators often have legal and/or dispute resolution training, and many have professional certification as arbitrators or practice professionally solely in arbitration and/or mediation.
Arbitration decisions are final and binding on the parties and can be enforced under the Arbitrations Act as court orders.
If parties want to try to reach a settlement but have someone make a final decision if they can’t, mediation-arbitration offers an effective way to do so. The same person will initially act as a mediator but if the parties cannot reach an agreement within a certain time frame or on certain issues, the mediator will then act as an arbitrator under the same procedures as a regular arbitration.
While going straight from mediation to arbitration saves time and money, parties may lose the confidentiality of their mediation discussions.
The lawyers at Alemi Law Group are experienced in alternative dispute resolution and can advise you on ways to resolve your dispute without going to court.
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