SERVICES
Dispute Resolution
Disputes are expensive.
Traditional litigation through the Courts is costly and burdensome. While a dispute is ongoing, the focus on things that matter is often lost. Profits are reduced, capital is tied up and precious time and emotional energy is spent focussed on the problem or problems. Effective strategies to solve problems quickly, economically, and privately include Arbitration or Mediation.
In Arbitration, the decision maker is an arbitrator. In Mediation the parties themselves craft the solution aided by a neutral third-party mediator.
1.WHAT
Mediation
Mediation is negotiation facilitated by a neutral third party mediator. For whatever reason, disputing parties often find themselves taking positions which may not reflect their risks or costs or are even in their best interests. A skilled mediator makes inquiries, helps parties define their interests and suggests ways for each of the parties to achieve objectives. Trust in the mediator’s neutrality is key to successful resolutions. The process can be evaluative or non-evaluative. In other words, the mediator in certain situations might provide the parties feedback on the positions taken and solutions proposed based on that mediator’s knowledge and experience. In non-evaluative processes, the mediator doesn't weigh in on the merits of either side's case. Both approaches have their place.
Arbitration
Arbitration is akin to a trial where the arbitrator or panel of arbitrators are the decision makers instead of a judge. Depending on the nature of the dispute and its complexity, parties may or may not have previously exchanged documents and carried out witness cross-examinations in “discovery” processes. Unlike trials, the parties themselves get to decide the basic rules by which the hearing will be held. Often rules of evidence are not strictly adhered to but fairness and the rules of natural justice always apply.
Mediation
The reasons are many. Solutions crafted by the parties themselves get buy-in. In circumstances where there is an ongoing relationship, rifts can be repaired. As with all ADR mechanisms there are the time and cost benefits. Many administrative and regulatory agencies such as the Land and Property Rights Tribunal and Alberta Energy Regulator encourage resolution through mediation. And Kings Bench Rules of Procedure rules 1.8. 4(3)(a) and 4.16 mandate litigants to engage in a dispute resolution process prior to being allowed to set a matter down for trial. Until recently there was a system for that through the Justices themselves. That is no more. These are just a few reasons to consider private mediation.
Arbitration
As with mediation, there are benefits to resolving disputes faster and more economically. Some contracts such as leases, insurance policies, and warranty programs contractually mandate disputes to be settled through arbitration rather than the courts. Some legislation such as the Line Fence Act mandate both arbitration and the specific process by which it is to occur. At times matters can be addressed that might be left unresolved in a court proceeding.
3.WHERE
Mediation
In person mediations and usually occur in boardrooms. Some forms of mediation call for the parties to remain together throughout the process. Most often, parties meet together and then break out to caucus separately. These days virtual meetings are commonplace and can be an efficient and cost-effective alternative method to hold a mediation.
Arbitration
As with mediations, arbitrations can be held in person or virtually.
4.WHEN
While Court processes now take years, scheduling a mediation or arbitration is simply dependent upon the parties’ and mediator’s or arbitrator’s schedule.
5.WHO
The choice of a mediator or arbitrator to assist in resolving a dispute is an important one. The right person should have some knowledge of the law related to the disputed issues but more importantly, the ability to weigh (in Arbitration) or assist the parties to weigh (in Mediation) all the truly important factors. This must be done in an atmosphere of fairness. Resolution is facilitated by trust in the chosen mediator or arbitrator.
Please review my bio page or contact me to see if I’m the right person to assist in your resolution.
CONTACT
DON MALLON