Alternative Dispute Resolution
Your options for resolving disputes are not confined to litigation in the civil justice system. Alternative Dispute Resolution (“ADR”), refers to the broad range of mechanisms that fall outside of, and complement litigating your dispute in our public court system; it broadly encompasses various forms of negotiation, mediation and arbitration.
ADR is a strategic and often necessary element to litigating and resolving disputes. These alternatives can offer more control, cost-efficiency and predictability over the dispute process, while avoiding delay and backlog litigants are currently facing in the Court system. Our litigation team has extensive experience using ADR to secure successful solutions for our clients across a broad range of legal issues and industries.
Negotiation and Mediation
Prior to starting a formal dispute resolution process, negotiation is always available to parties to resolve issues between them. Knowing when to negotiate—when a deal, partnership or relationship breaks down—is not always obvious; especially when dealing with the consequences flowing from a dispute.
Our litigation lawyers have considerable years of negotiation experience across multiple industries. We know when disputes are appropriate vs. when they require negotiation, and when and how to leverage the threat of procedures with litigation for strategic advantage to assert your rights. We also recognize when to avoid engaging in futile negotiations with intransigent participants. Even at very early stages in disputes, our lawyers provide advice that can help prevent parties from becoming entrenched, and the dispute exacerbated.
Mediation is a form of non-binding negotiation between the disputing parties, before a neutral third-party mediator. In the Toronto, Ottawa and Windsor judicial regions of the Ontario Superior Court, litigants are required to participate in mandatory mediation before a lawsuit will be scheduled for trial.
At the right time, and in the right circumstances, mediation can bring disputing parties back to the table, help to narrow down issues, and efficiently resolve a dispute. Experienced mediators, with relevant industry and legal expertise, can provide the disputing parties with an objective assessment of the risks and liabilities of a case and allow the parties to make better-informed decisions about how to proceed.
Compared to the uncertainty and risk of litigation, mediation can be a cost-effective mechanism for achieving resolution. In mediation, parties are involved in the process, and the process permits far more flexibility in addressing issues than by arbitration or litigation. Although mediations do not impose an obligation on the parties to settle, a mediator’s assessment of your claim or defence can often carry significant weight in the parties’ assessment of their position at that time. The only views they have are their own and the opposing party’s. Our lawyers have experience advocating for our clients’ positions, and identifying alternative, dynamic solutions to address the disputing parties’ interests.
Arbitration is a form of private, legally binding dispute resolution. Whether by prior agreement, or on an ad-hoc basis, parties can submit disputes to private judges (arbitrators), to determine the issues between them.
Canada is internationally recognized as a favourable jurisdiction for arbitrating disputes. Case law in Canada has repeatedly affirmed the validity and enforceability of arbitration decisions under provincial arbitration acts and the federal International Commercial Arbitration Act. This support for arbitration means that you can rely on the finality of arbitration decisions and the enforceability of their remedies with the same force as a court-issued Judgment, and in other countries through international treaties to which Canada is a signatory.
Although parties must fund arbitration themselves, there are numerous advantages over court proceedings. Arbitrations allow the parties to choose or control the forum and process through which the dispute will be settled. Arbitrations avoid the delays faced by litigants in the civil justice system, and permit parties to keep the outcome confidential. These advantages can mean that despite having to bear the arbitration costs, the efficiency of the private process can save the parties money.
We encourage you to reach out to us if you require assitance: drafting enforceable arbitration clausies in your contracts; are looking to resolve a dispute through ADR; are involved in a dispute that requires the parties to engage ADR; or if you are looking to have an arbitration award enforced by the Courts in Ontario.
In addition to acting as counsel in mediations and arbitrations, the head of Robins Appleby’s litigation practice, Irving Marks, provides mediation and arbitration services to disputing parties. You can find more information on the 40 years of dispute resolution experience Irving brings to the table as a mediator and arbitrator in his profile.
- Litigation and Dispute Resolution