Resolving legal disputes can take a lot of time and money. Cases can stretch on for months and years, and become progressively more expensive as they do so. For many, seeing a matter all the way to the end using traditional litigation is not feasible, both financially and because of the timeline.
Alternative Dispute Resolution (also known as ADR) provides parties to a legal action the opportunity to avoid the delays and costs that are associated with court. But what exactly is Alternative Dispute Resolution and why has it become more and more popular?
What is Alternative Dispute Resolution?
ADR is an umbrella term for resolving legal matters outside the courtroom. This includes negotiations, mediations, and arbitrations.
When determining what alternative route to take, parties involved in a dispute should evaluate the nature of the dispute, the details, and who the parties are (i.e. are they both individuals, are they both large organizations or corporations, is it an individual against an organization or corporation, and so on).
ADR can be used in various types of legal disputes arising from different areas of law. This includes:
- Family Law (divorce, separation, prenuptial agreements, parenting plans, estates);
- Employment Law (wrongful dismissal, workers’ compensation, discrimination, harassment);
- Commercial Law (contracts, personal injury, partnerships, landlord/tenant issues);
- Public Disputes (environmental); and
- Other issues involving faith communities, schools, and not-for-profits.
Mediation is a dispute resolution process that is led by an impartial third party, the mediator. Mediation is non-binding, meaning the parties may not necessarily have to come to an agreement in the end, or may come to an agreement and may later decide to pursue a different resolution.
Unlike a judge in a courtroom, in a mediation the mediator does not act as the final decision-maker and does not impose a resolution. Rather, they help guide the parties to a mutually agreeable remedy to the dispute.
Mediation is often thought of as a good option for parties that can cooperate, since it is ultimately up to the parties to come to an agreement. The parties play an active role in the discussions and ultimately an agreement is met when the parties are satisfied.
Arbitration is also led by a neutral third party, an arbitrator. The difference between arbitration and mediation is that an arbitrator’s decision is binding, and the parties do not have to agree with his or her decision. This makes the arbitration process more similar to traditional litigation.
Arbitration is often used in commercial disputes as a private alternative to litigation. Arbitration is governed by provincial and federal arbitration legislation. At the federal level, commercial arbitration is governed by the Commercial Arbitration Act, and at the provincial level in Alberta, arbitration is governed by the Arbitration Act.
There are many reasons why parties choose to use arbitration. Often, in labour agreements, arbitration is the official form of dispute resolution and outlined as such in employment agreements. In other situations, the parties may decide to proceed with arbitration given the nature of their dispute. Speed, choice of the neutral third party, the technical issues of the dispute, and the confidentiality of the arbitration process (final decisions will not be made publicly available, unlike court decisions) are all features that distinguish arbitration from litigation and make it more attractive to some parties.
Why has ADR become more popular?
Going to court is expensive. Between lawyer fees, court fees, and disbursements, the cost of resolving a legal dispute can grow rapidly. ADR is meant to be a tool to help expedite the process and lower the costs.
There are, of course, still costs associated with mediation and arbitration. Mediators and arbitrators do both have fees and both parties must still pay for representation by lawyers. However, there is a greater ability for the parties to control costs in ADR.
The court system can drag out the process for a long time. Depending on the matter, it is possible that it is not resolved for years. Mediation and arbitration can speed up the process. There is no waiting on available court dates, the mediator and arbitrator are the gatekeepers for the negotiations and this can significantly escalate timing.
In addition to making resolution of legal disputes more financially accessible, parties who use ADR often feel as though they have more of a voice when they are actively involved in the process. While still formal, ADR is less formal than court, and parties may feel more comfortable to express themselves in such a setting, especially when the dispute in question is of a more personal nature.
The Canadian court system is not perfect, and it is often bogged down due to the large volume of matters. As parties to legal disputes seek faster and more economical ways of resolving their issues, ADR will continue to be an attractive option. ADR is likely here to stay, and it is likely to continue to grow in popularity. ADR helps alleviate some of the mounting pressure in the courts, and more lawyers are taking the steps to encourage different forms of ADR, or to become qualified mediators and arbitrators.
Finding a qualified mediator or arbitrator can often delay the process. But at HMC Lawyers, we have a lawyer who is a fully qualified arbitrator and mediator, and another who is a qualified mediator. We provide arbitration and mediation services in a wide range of areas, including personal injury resulting from motor vehicle accidents, to construction disputes, commercial disputes, and condominium disputes. To discuss how we can help you resolve your legal dispute more efficiently through alternative dispute resolution, contact us online or call 1-800-480-3534. Wherever necessary, we are available to travel throughout the province of Alberta and Western Canada.