We offer services in Alternative Dispute Resolution
Paul Dollak has an LL.M. in A.D.R. from Osgoode Hall Law School, where he has also helped teach negotiation and A.D.R. to law students at both the graduate and undergraduate levels, and to fellow lawyers taking continuing legal education courses. Paul Dollak has published articles about A.D.R., acted as a mediator, acted as counsel on behalf of clients involved in countless arbitrations and mediations, and has argued many important cases before the courts which have dealt with the rights and remedies that are available to parties who have agreed to use A.D.R. to resolve their disputes.
ADR stands for Alternative Dispute Resolution. It encompasses both mediation and arbitration. Using ADR means trying to resolve a dispute by means other than traditional litigation. ADR seeks to save the high costs and other destructive consequences that can ensue when parties become embroiled in litigation by seeking to resolve the underlying disputes by means that are tailored to the parties and their circumstances.
Mediation is the attempt to resolve a dispute by agreeing to refer it to one or more individuals who can assist the parties in coming to a negotiated settlement. Mediation is conducted in confidence and without prejudice to the parties' rights; that is, the parties cannot repeat things said in the mediation in later proceedings if mediation fails.
Different mediators tend to take different approaches to mediation. For example, a mediator with an "interest-based" approach will attempt to get past the positions taken by the parties in order to isolate the underlying problems and interests so that the parties can fashion their own mutually acceptable settlement. A "rights-centred" mediator will focus more on the relative strengths of the parties' legal positions and will try to persuade the parties to compromise based on the strengths and weaknesses of their relative positions; sometimes this is called "non-binding arbitration". A "transformative" mediator will focus on the human interests involved in the dispute and may try to change the participants' perceptions of themselves and the other side in order to facilitate a resolution. Another type of mediator may attempt to steer the parties towards what the mediator seizes upon as the best resolution, employing whatever power the parties have given to the mediator to leverage a settlement, sometimes even pressuring them or even "twisting their arms" so that they settle. Such a might be characterized as taking an "evaluative" approach.
A few mediators - perhaps the best and most skilled mediators - employ a variety of approaches, depending on the parties and the dispute. Such mediators may even change and vary their approaches during the course of a mediation session.
Arbitration is the referral of a dispute, by agreement, to one or more persons who will decide the parties' rights. In other words, a private judge. The advantage of arbitration over litigation is that the parties can tailor the process to their particular needs. They can minimize costs by limiting the issues that need to be decided. They can pick an arbitrator or arbitrators with expertise in the topic in dispute, and so save the costs of having to educate a judge about an idiosyncratic area of law. They can dispense with sometimes-costly formalities that are involved in the presentation of evidence, and they can limit rights of appeal. Arbitration is a good alternative to litigation where the parties cannot agree upon an outcome but can agree upon a mutually beneficial process.
Med-arb is a hybrid form of ADR in which the same person or persons who conducted the mediation become the arbitrator or arbitrators of the dispute if the mediation is unsuccessful. The advantage of a med-arb over other forms of ADR is that it saves the costs of having separate mediators and arbitrators who will all need to be paid and educated by the parties before they can try to resolve the dispute. The disadvantage of a med-arb is that it makes the full exploration of all options in mediation, and therefore a successful mediation, less likely, as parties may be guarded in disclosing all of their true interests during the mediation phase in the fear that their disclosures will be used against them if they proceed to arbitration. Such disclosure during the course of an ordinary mediation, in contrast, could not ordinarily be repeated to the arbitrator or a judge if the mediation does not result in a settlement.
Under Ontario's Rules of Civil Procedure, certain types of lawsuits commenced in the courts are required to be mediated before trial, whether or not the parties have formally agreed to mediate their disputes. While parties to a lawsuit can ask the Court to exclude them from mandatory mediation in certain circumstances, most cases subject to the mandatory mediation rule do in fact proceed to mediation - and a large proportion of those cases settle.