November 19, 2014
PART 1: MEDIATION
ADR stands for Alternative Dispute Resolution or Appropriate Dispute Resolution. ADR is a rapidly developing and growing area of law in Canada due to its accessibility, cost effectiveness and less adversarial structure than traditional litigation. The field of ADR consists of numerous techniques and methods including:
- Restorative Justice
- Collaborative Law.
ADR may not be suitable in all cases as it is typically predicated on a voluntary and good faith approach by all parties. There are a number of situations where ADR will not be desirable in the legal context. Examples of these situations are:
- where the parties wish to set a precedent
- the parties want a formal judicial ruling
- where a court order is required to enforce a judgment.
This article focuses primarily on mediation. Mediation is when parties elect to have a neutral third party assist them in finding a voluntary resolution to a dispute. The mediator does not make a decision when it comes to the issues involved; rather assists and facilitates the process of coming to a mutual agreement. If and when an agreement is reached by the parties, it will only become binding when the parties sign a formal settlement agreement.
There are particular instances and jurisdictions where court-connected mediation is mandatory as provided for in Ontario under the Rules of Civil Procedure. Mediation is also recommended in the family law context and provided for by the Superior Court Family Mediation Services. There are a number of non-court related contexts where mediation can be suitable such as:
- Elder mediation
- Wrongful dismissal
- Neighborhood conflicts, landlord-tenant issues
- Customer complaints
- Conflicts within educational or religious institutions
- Construction industry disputes.
Many parties opt for mediation in order to maintain more control over the outcome of the dispute, reduce costs, and attempt to preserve relationships between parties. Mediation can be particularly beneficial when parties are required to have a continued relationship following the resolution of their dispute.
The ADR Institute of Canada has developed Mediation Rules and a Code of Conduct for Mediators that may be used here in Thunder Bay and across Canada, though they are not mandatory. These rules provide a mechanism for initiating mediation and appointing a mediator. They also outline important and essential concepts of impartiality, confidentiality and independence of the mediator. Other organizations provide similar frameworks, often designed for specialized disputes.
Parties are often represented by lawyers in mediations (this is almost always the case where a lawsuit is pending), but for some types of mediation, the parties can save the cost of a lawyer and present their own position. However, in those situations, it is important to understand that the mediator might be a lawyer, but is not there to give legal advice. If legal advice is required, a party should consult their own lawyer.