Maybe it’s a dispute between neighbours. Or a conflict at work. Or a change to child custody arrangements. Tempers flare, things escalate and the next thing you know you’re headed for court. Regardless of your legal problem, once you’ve entered the court system, things become much more complex and you may have much less control over the process.
Before you go to court, there are other options that should be considered. This column will look at some of the online resources available to help individuals interested in exploring alternative dispute resolution (ADR).
Public legal education portals such as LawCentral Alberta, Clicklaw, and yourlegalrights.on.ca are good starting points. Each portal has a separate section which links to resources that help people understand their legal problems and, ideally, resolve those problems outside the courts. Within the portals look under ‘Alternatives to Court’, ‘Alternative Dispute Resolution’ or ‘Solve Problems’.
The ADR Institute of Canada, also referred to as ADR Canada, is a key source of information on ADR. This nonprofit organization provides leadership, resources and support for both professionals working in dispute resolution as well as for the individuals and organizations who use their services. For those new to the subject, its list of Frequently Asked Questions outlines options for resolving conflicts outside the traditional litigation process, including mediation, arbitration and other non-adjudicative processes such as mini-trials and early neutral evaluation. Regional affiliates of ADR Canada span the country and links to these organizations are listed in the Member Resources section.
Mediation is one of the most frequently accessed ADR options. Parties work together through a trained intermediary to try to work out their legal disputes and reach a satisfactory outcome through guided negotiation. Mediation is not a substitute for legal advice and the mediator will not decide the outcome of the dispute. Justice Canada’s Dispute Resolution Reference Guide – Mediation gives an overview of what mediation is, how the process might be applied, and sets out some of its advantages and disadvantages. ‘Mediation – Building Solutions that Work’ is a short online video by the Alberta Courts that can help potential participants understand the mediation process and how it might work for them.
Neutral evaluation is another dispute resolution option that can be used on its own or in conjunction with other forms of ADR. An experienced third party (typically a lawyer or a trained dispute resolution practitioner) meets with the parties to hear the details of their cases. The evaluator will provide a non-binding evaluation of the merits of each party’s case. See the Neutral Evaluation section within Justice Canada’s Dispute Resolution Reference Guide for a detailed look at the process as well as a checklist and a sample neutral evaluation agreement.
A third, and more structured approach to alternative dispute resolution, is arbitration. Arbitration differs from other ADR processes in that it is, in most instances, binding on the parties and the decision of the arbitrator may be entered on the court record. The ADR Institute of Alberta has posted a video to explain what arbitration is and how it works. Arbitration is frequently used in disputes relating to the workplace, such as grievances between unions and employers and unfair dismissal cases. The Federal Mediation and Conciliation Service plays a role in resolving certain types of disputes governed by the Canada Labour Code.
ADR Canada members who practise mediation agree to abide by the National Mediation Rules and the Code of Ethics. There are also National Arbitration Rules. Both sets of Rules provide a Model Dispute Resolution Clause that can be used when setting the terms of a contract.
To find a private dispute resolution practitioner there is ADR Connect. This bilingual database lists mediators, arbitrators, trainers and other ADR specialists across Canada. The seven regional affiliates listed on the ADR Canada website also maintain directories of registered practitioners and their areas of interest. Family Mediation Canada and its affiliate organizations provide contact details for professionals specializing in family matters.
Information about mediation and other dispute resolution services is set out on the respective provincial and territorial government websites, usually under the Justice or Attorney General portfolios. For family matters see the Inventory of Government-based Family Justice Services by Justice Canada – a listing of provincial and territorial government agencies that provide support for families going through separation and divorce.
There are many benefits to using alternative dispute resolution methods. ADR can save you time and money, offer you more control over the process, and help to preserve relationships. ADR will not be an option in all cases but by accessing some of the resources outlined here, and asking for help when you need it, you’ll be in the best position to determine if it may be a tool to help you resolve your legal dispute.
About Margo Till-Rogers
