Q: I am in a legal dispute with my rural municipality, and it has proposed “alternative dispute resolution” instead of court. What does this mean and should I do it?
A: Alternate dispute resolution (ADR) is just what it says: a different way for parties to settle their argument. The alternate aspect comes from the underlying concept that this is a way for people to air their disputes outside of a traditional court process and setting. It assumes that you want to resolve matters in a civilized way, not involving violence or intimidation, with some third party helping out.
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ADR takes numerous forms. One of the oldest and most common is arbitration. This is where an impartial third party is appointed to hear and consider the case. Sometimes the people in a dispute agree on who a single arbitrator will be. Other times, each side selects one arbitrator, then those two select a third to sit as chair. The panel of three then hears the case. Both sides equally split the costs of the arbitrators.
Arbitrators are often lawyers, but do not have to be and can also be non-lawyers with skill in a particular area.
For example, a construction dispute might be arbitrated by an engineer or architect. I’ve had agricultural disputes decided by everyone from crop insurance adjusters to professors of agriculture. Labour and employment issues have long used arbitration.
The arbitrator holds a hearing, but it is less formal than court. He or she hears both sides of the case, and the rules of evidence are more relaxed than in court. The objective is to handle the case as quickly and cheaply as is possible, yet still get a fair and reasoned result based on evidence, the law and common sense.
The arbitrator will provide a written decision called an award, which is binding on the parties and is final. There is no appeal, and a court can only review the arbitration result if the arbitrator has erred on some fundamental legal principle.
Another form of ADR, which is growing in popularity, is mediation. This is softer and less confrontational. Again, the parties split the costs of hiring an accredited mediator, who acts as a facilitator to help the parties come to a settlement to which they mutually agree.
The mediator usually meets with each side individually, then brings everyone together to draw the parties toward a compromise. Mediation works well with people willing to communicate and be flexible. Mediation is not binding unless an agreement is reached. If mediation doesn’t work, you can usually still sue or go to arbitration.
You can also try a neutral evaluation. This is where the parties hire an expert who is neutral, who hears what everyone has to say about the case and then gives his opinion what he thinks would happen. This is not binding, but it often prompts the parties to settle or modify their positions. This is probably the least-used ADR process.
All of these procedures have advantages and disadvantages. You are not proceeding to a court, so formality and rights of appeal are lost. But you will get to the end of your dispute in a way that is likely quicker and cheaper than the traditional court route. With rising costs of litigating in court, ADR has become an attractive alternative.
Whether you should do this depends on several factors. Do you think the other side and you are willing to sit down, talk openly and reasonably and try to come to a mutual solution? If so, give mediation a try.
If you don’t believe this will happen and want your “day in court” but you do not want to spend big money on a case, then arbitration is an option. The results are often the same or better, the case is finished sooner and you spend less. All are important factors in today’s business world.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
