is an acronym for “alternative dispute resolution”. It refers to methods to resolve disputes outside the traditional court litigation system. The typical forms of ADR are Mediation, Arbitration, Med-Arb and Adjudication.
Many disputes in Ontario are resolved outside the courts which are not ADR. These include cases before the hundreds of provincial and federal administrative boards and tribunals which adjudicate on specific topics under the authority of a statute. These include the Ontario Labour Relations Board, the Landlord and Tenant Board, the Workplace Safety Insurance and Appeals Tribunal, the Ontario Human Rights Tribunal, the Health Professions Appeal and Review Board and the Discipline Committees of many regulated professions and occupations.
ADR enables people and corporations involved in a dispute to select the forum, neutral party, the governing law and even the procedural rules to be applied to the resolution of their dispute.
Mediation is a confidential, off-the-record structured negotiation process in which a neutral person, the mediator, assists the parties and their lawyers to achieve a settlement of all or some of the issues of their dispute. The mediator has no authority to order the parties to do anything. The lawyers for the parties provide a synopsis of the facts, legal positions and some key documents to enable to mediator to understand the case. Sometimes, the lawyers provide a summary of damages and expert evidence.
After a brief introductory session involving all parties, the parties go to separate rooms with their respective lawyers. The mediator discusses the issues with each party and their counsel separately and shuttles between the parties in an attempt to narrow the issues and reach a settlement. The mediator’s experience and skill is required to help the parties identify creative ways to break the impasse on difficult issues, which may involve very significant amounts of money.
If the parties agree to settle the issues in the case, a settlement agreement or Minutes of Settlement are frequently prepared at the mediation and are signed by the parties and their lawyers.
The mediator’s understanding of the facts and issues in the case and his commitment to find a resolution is key to the success of the mediation process. The mediator uses many persuasive techniques to narrow the parties’ disagreement. The mediator also advances the benefits of settlement and points out the costs and risks of litigation. In some cases, settlement advances some interests of the parties which transcend the specific issues in the litigation. If requested by the parties, the mediator may express his opinion about the merits of a particular factual or legal issue. In some cases, of course, the gaps cannot be bridged and the mediation does not produce a settlement. Sometimes, progress is made on an issue during the mediation, which enables the parties to reach a settlement later.
Mediation is mandatory in nearly every action by the Rules of the Ontario Superior Court of Justice under Rule 24.1. Confidentiality is an essential aspect of mediation and is mandated by Rules 24.1.14, 75.1.11 and 75.2.08.
Arbitration is an adjudicative dispute resolution process in which the parties select a neutral person or persons, the arbitrator, to decide their dispute and agree to be bound by the decision. The attractiveness of arbitration as a dispute resolution process is that it enables disputants to agree upon most aspects of the manner in which their dispute will be determined, including,
- the forum (a sole arbitrator or a panel of three)
- the types of disputes which the arbitrator will be permitted to consider
- the manner in which the arbitrator will selected
- the arbitrator’s special qualifications or experience
- the identity of the arbitrator
- the rules of procedure and hearing process to be applied during the arbitration
- the governing law of the arbitration
- the place where the arbitration will be heard (known as the seat)
- the language of the arbitration
- the time in which the arbitrator must deliver the award
Disputants may agree to some or all of these matters in an agreement before any dispute arises or the agreement may be made when the existence of the dispute is already known. Where the parties have not agreed on all of the elements, the Ontario Arbitration Act, 1991 (where all parties are resident in Ontario) and the International Commercial Arbitration Act (where one of the parties is not resident in Ontario) provide many of the terms applicable to the arbitration upon which the parties have not expressly agreed.
Arbitration differs from litigation in Court in many ways. It is a procedure outside the Court system but there is involvement with the Courts in many arbitrations, particularly to deal jurisdictional issues and when the arbitration award has been issued by the arbitrator, to enforce it. Enforcement involves an application the Court to make the arbitration award a judgment of the Court, which permits use of enforcement procedures in the Rules of Civil Procedure.
Unlike mediation where the mediator has no authority to require the parties to do anything, the arbitrator has jurisdiction to do what the arbitration agreement authorizes, which may include,
- determining the process by which the arbitration will be conducted
- interpreting the scope of his/her jurisdiction under the arbitration agreement
- summonsing witnesses to appear before the hearing of the arbitration
- making interim preservation orders
- making a final award, which may include an award of costs
Unlike a judge of the Court, an arbitrator does have the power to find a party in contempt, nor does the arbitrator have jurisdiction to make an order against third parties who are not parties to the arbitration agreement.
Med-Arb is a less common process in which provides services as a mediator, but if the case cannot be settled, s/he becomes an arbitrator to decide the issues. Med-Arb rarely occurs in business disputes in Ontario.
Opinions and Neutral Evaluation
is a non-binding process, in which one or both of the parties request an neutral opinion about the factual and legal merits of a case. In essence, the parties are asking, “On the basis of the following facts and documents, how do you think the case would be decided, if you were the arbitrator or judge.” The opinion or evaluation may give some insights to enable one or both parties to narrow areas of disagreement.
is a process similar to arbitration, often used in construction disputes. It typically deals with interim matters rather than the whole dispute. The process will often be informal. There may be agreement on the facts followed by argument by counsel. The adjudicator will determine the interim to enable the parties to continue the project. The parties must agree before the adjudication that they will be bound by the adjudicator’s decision.
Trial and Appeal Strategy
Well-considered Trial and Appeal Strategy is crucial to the success of your case. Many lawyers, even those who have been at the bar a number of years do not get to trial or arbitration hearings often enough. This is desirable. However, some cases just cannot be settled. This is when litigation counsel in a small firm, or a younger lawyer, who does have a senior mentor, could benefit from Igor Ellyn’s experience as trial and appeal counsel. Igor is available to assist with matters which could make or break your case:
- overall trial strategy
- identification and framing of legal issues
- preparing the fact witnesses to testify
- preparing expert witnesses to testify
- preparing for cross-examination of opposing fact and expert witnesses
- preparing opening submissions
- preparing closing submissions
- assessing strategy for appeal