What is Alternative Dispute Resolution in Ontario?

During 2016, more than 70,000 new civil lawsuits were filed in the Ontario Superior Court of Justice (SCJ). The SCJ is the provincial court that hears all civil proceedings in Ontario. But, although 70,000 lawsuits may sound like a lot, that figure pales in comparison to the number of legal disputes addressed by forms of alternative dispute resolution in the province each year.

“Alternative dispute resolution,” or “ADR,” is the technical term for any method of resolving a legal dispute outside of court. Many parties prefer ADR to litigation, because the less-formal procedures available outside of court can save time and expense and give the parties greater control over the dispute-resolution process.

This post briefly introduces the three types of ADR most commonly used in Ontario and considers the potential advantages offered by such processes. However, it bears keeping in mind that there is no one “best” mechanism for dispute resolution. Whether ADR or court proceedings are better in any particular case depends on the facts and circumstances of that case.

• In general, when people speak of ADR, they are referring to negotiation, mediation, or arbitration, although other forms of ADR exist.
• The various forms of ADR can often offer advantages over traditional litigation, but aren’t always the best strategy.
• Whether your case is better suited to trial or ADR depends on a number of factors, which a lawyer can help you analyze.

Types of Alternative Dispute Resolution

The term “alternative dispute resolution” refers to any number of out-of-court procedures for resolving conflicts. It can even refer to, for example, flipping a coin. But when lawyers and judges use the term, they are usually referring to one of three types of ADR: negotiation, mediation, or arbitration.

Negotiation

Negotiation is one of the simplest and most straightforward forms of ADR: The parties discuss their conflict with one another to try to come to an agreement about what to do. They may do this directly or through intermediaries, such as lawyers.

In fact, in a personal injury claim, negotiating with the defendant or his or her insurance company is usually one of the first steps a personal injury lawyer will undertake. If your lawyer and the lawyer for the defence can come to an agreement on the terms of a settlement (with your approval), you can avoid appearing in court.

Because of its simplicity, negotiation is typically the least expensive form of dispute resolution.

Mediation

In mediation, the parties to the dispute ask for the help of a neutral, trusted outsider (the mediator) in resolving their disagreement. The role of the mediator is to facilitate communication between the parties and urge them towards a mutually agreeable resolution. The mediator may do so by, for example, highlighting the risk of going to trial or noting the weaknesses in each party’s case (like the presence of a pre-existing injury).

The mediator does not “decide” the dispute or make an award of damages. He or she is just there to help the parties communicate and move towards settlement.

In Ontario, the parties to many civil lawsuits are required to complete mediation before the court will set the case for trial. For example, under the Ontario Rules of Civil Procedure, the parties to civil litigation filed in Toronto, Ottawa, or Essex County must normally submit their dispute to mediation before trial.

Mediation is generally more expensive than negotiation, because the parties will need to pay the mediator for his or her services, in addition to paying their own lawyers.

Arbitration

Arbitration is similar to mediation in that it involves a neutral third party. But arbitration is a more complicated form of alternative dispute resolution than the previous two. In many ways, arbitration resembles a trial in court, but it is presided over by one or more private arbitrators instead of a judge. But, like a judge, the arbitrator can make an award of damages and costs.

The rules under which an arbitration proceeds, including rules of procedure and rules of evidence, can often be determined by the agreement of the parties. In general, the parties may also determine whether an arbitrator’s award will be binding or non-binding. If the parties agree that the award is binding, then further review by a court is limited.

Arbitration tends to be the most expensive form of ADR, because it is more formal and complex than other types.

The Potential Advantages of Alternative Dispute Resolution

The different forms of ADR offer several potential advantages over litigating a claim in court. Those advantages include:

• Faster resolution: Court cases can take many years to resolve. Just consider some of the case studies we routinely discuss on this blog: We often describe court decisions that have been recently released, but that relate to events that took place five or more years ago. ADR can often resolve disputes much more quickly than that.
• Less expensive procedures: In part because court cases take so long, and in part because they tend to be more formal and complicated than ADR, litigating a case also tends to be more expensive than settling it through negotiation, mediation, or arbitration.
• Greater control by the parties: The rules of procedure that govern in court are what they are, whether the parties would prefer they be different or not. But the rules that apply in an ADR proceeding can be determined by the parties’ agreement, meaning the entire process can be customized to suit the parties’ needs and desires.
• Confidentiality: Court records are public records, meaning that the details of a dispute and its resolution are open to the public once litigated. In contrast, ADR is a private process, and the parties can agree to keep their dispute and dealings confidential.

Keep in mind, however, that these are merely potential advantages of ADR. They do not always materialize in real-world disputes. If ADR procedures fail, for example, they may simply increase the cost and length of resolving a legal claim.

Is Alternative Dispute Resolution Right for Your Case?

Alternative dispute resolution is an important part of modern law in Ontario. In many cases, it can help resolve disputes faster and at less expense—but not always. Which dispute-resolution strategy is optimal in any given case will depend on a number of factors.

To receive personalized, case-specific legal advice, contact Preszler Injury Lawyers by calling 1-800-JUSTICE today and receive a free intial consultation.