With the high cost and long waits to get before a Justice, many lawyers and their clients are considering Alternative Dispute Resolution as a first option in legal disputes.
Mediation and Arbitration in Alberta
In Alberta, particularly in Family law and Divorce matters, there is encouragement to attempt mediation, arbitration or the hybrid mediation-arbitration prior to litigation.
Clients and their lawyers will often question which one will meet their needs and assist them as far as possible in an efficient but fair manner. The choice of the ADR processes are similar in that the client, either with counsel or in a self-representative capacity, hires a neutral third party to assist them with their matter. The role of that third party is what separates the Arbitration and Mediation processes. While in mediation, the mediator is to assist the two sides to find a common ground and to agree to a settlement that they can agree with or abide, the arbitrator is hired for his or her expertise in that area of law to be the decision maker.
An Amicable Way to Resolve The Matter
Other reasons to consider one process over the other is the desired result at the end of the process. Mediation allows the parties to find common interests and maintain an amicable relationship. This is important when the two parties are parents who will need to effectively co-parent children or manage supporting their families for a period of time which extends past their divorce.
A potential drawback to mediation is that if the parties are unable to agree on a resolution throughout the process, the issue remains and there is no decision maker to settle the dispute. Under the jurisdiction of the Arbitration Act and the specific topics agreed to between the parties and the Arbitrator in the arbitration agreement, the arbitrator is assigned the role of a judge to make a final decision. The parties and counsel get to decide the issues that this person gets to decide and whether there are rights to appeal the decision. The Arbitrator and the Counsel may also decide on the process of the Arbitration—whether is it a formal quasi-trial with questioning and arguments, or as informal as the counsel submitting a written position to the Arbitrator. Arbitration is an ideal option for higher-conflict parties who require a third party to make a decision on their behalf, and wish to avoid the delay and some of the costs of preparing for Court.
Mediation-Arbitration: A Hybrid Approach
Of course, there may be times where the parties want the collaboration that comes from attending a mediation, but are concerned about the ‘what if’ should they not be able to come to a consensus. This is where clients may want to explore mediation-arbitration or ( MedArb as it is also known). Again, a MedArb Agreement will set out the rules and the issues of the process, but unlike a mediation, any issue or the entire process itself can be changed to having the expert become their Arbitrator upon request. MedArb is also flexible in that if the parties wish to have the Arbitrator take into account submissions or evidence given in mediation to be considered, they can request this in the initial process and have it become part of the MedArb Agreement.
