Veronica Ukrainetz

Alternate Dispute Resolution (ADR) is a term applied to resolving a dispute outside of traditional litigation methods. There are many different forms of ADR.

Mediation

Mediation is a conflict resolution tool involving a neutral third party facilitator whose role is to assist the parties in arriving at their own resolution of the conflict. Mediations are privileged and “without prejudice”: Settlement discussions and mediation efforts cannot be brought into subsequent litigation.

The elements of a successful mediation include an impartial third party who facilitates the mediation. The parties need to be committed to protect integrity and confidentiality of the mediation process. The parties need to attend in good faith and with the intention of directing their energies towards a solution not a fight. The parties attending should have the authority to settle. The site of the mediation should assure neutrality and confidentiality. And the site of the mediation should also have a joint meeting room and at least one separate caucus room.

Arbitration

Arbitration is a process where parties who have been unable to negotiate a solution to a problem, agree to put the matter to an independent neutral person and to be bound by that person’s decision. Arbitration is like a court trial in that each side has a representative (usually a lawyer) who presents evidence, through witnesses and documents, and makes legal argument. The arbitrator then issues a binding decision.

Arbitration is different from a court trial in that the procedures are more informal, less complex and more efficient and the process is private. It is also different because in almost all cases, the “winning” party cannot recover their arbitration costs (as opposed to a court trial, where costs are higher and the winning party usually – but not always – recovers a portion of those costs from the losing party).

The elements of an arbitration include a neutral third party arbitrator, a straightforward discovery process by which each side presents the other with the key facts and documents well in advance of the hearing dates, agreed upon cost sharing of the arbitrator, a range of remedies (the arbitrator has flexibility in deciding how he or she will “solve” the problem) and written reasons (the arbitrator should summarize the facts and explain the basis for his or her decision). An arbitrator also has the ability to convert an arbitration into a mediation at any time (med-arb). That said, arbitrators have different comfort levels in doing so.

ADR

ADR also includes: Consent Awards, binding mediation, fact finding, trouble shooters, and investigations. These approaches are further modifications of more traditional arbitration and/or mediation processes.

Why ADR?

Litigation is long, complicated and expensive. It presents procedural hurdles and challenges which can be used to prevent or delay the matter from getting to a trial. It is less fluid: a Judge will not offer to mediate or even suggest mediation once the trial is underway. It is expensive in terms of legal fees and the time that all parties and their witnesses must dedicate. It is uncertain: the Courts double book so there is no certainty that the trial will occur on the date that it has been set or that trial continuations will occur expeditiously or on the dates they are set. It has more opportunities to appeal. And it offers no control over who the decision maker is.

Whereas ADR offers control over whom the neutral third party mediator or arbitrator is. It helps to avoid a situation from escalating, say to a termination. It may solve not only the dispute, but the problems underlying the dispute. It improves workplace communication and employee morale. It enables the parties to address discrimination and harassment complaints through problem solving. It maintains long term relationships. It avoids litigation and statutory proceedings (eg. Employment Standards and Human Rights) but does not have to replace them. And it is faster, simpler and more private.

Litigation cannot always be avoided nor should it be. But ADR should be considered as another option towards resolving a dispute. Even if it is not successful, it will provide valuable information and insights and so enable both parties to be better prepared for litigation and/or future settlement discussions.

About the Author:

Veronica Ukrainetz of Ukrainetz Law Corporation, has throughout her 15 years of practice, restricted her practice to labour relations, employment and workplace related human rights law. In this time she also worked in-house as a HR Manager to KFC’s corporately owned restaurants in Western Canada. Veronica acts primarily for employers, both unionized and non-unionized. She is a strong advocate of preventative and proactive employment practices and encourages her clients to work co-operatively to resolve issues–treating litigation as a last, not a first resort. She conducts harassment investigations, negotiates collective agreements, develops employment agreements, policies and handbooks, and provides workplace related seminars.