On November 8, 2007, my guest on “Strictly Legal” was Elinor Whitmore. She is a mediator at the ADR Chambers in Toronto and an experienced trainer in the area of alternative dispute resolution.

I wanted to explore this topic on “Strictly Legal” because there is a growing frustration with the traditional adversarial process and, in particular, the cost and anxiety created by courtroom litigation. As a result, more and more people and businesses are moving their disputes out of the court system into some of the new alternatives.

This process has been underway for some time. Business people, in particular, were becoming increasingly alarmed at the snail’s pace of dispute resolution in the court system. The cost of litigating was beginning to overtake the benefit of even a successful outcome. Sure, people were awarded their costs if they were successful, but those costs often represented a fraction of what was actually spent on the dispute. Time away from the office, the emotional drain, and the fact that the business dispute was being aired in public, all contributed to a growing distaste for litigation.

Arbitration has long been used in resolving commercial disputes. Experience with arbitration goes back hundreds of years but, more and more, people and businesses are resorting to arbitration to resolve disputes that just a few years ago they would have been very happy to turn over to lawyers for litigation. In addition, mediation has really caught fire as a much more satisfying way to resolve disputes.

Mediation is a process whereby an experienced third party acts as a neutral facilitator of negotiations. The job of a mediator is not to impose a decision on anyone, but rather to assist the parties in finding creative solutions to the problem they face. Dispute resolution is not always a win/lose situation. Mediation can make it win/win.

A few years ago, I attended Harvard Law School to take their program in Negotiation and Advanced Negotiation. It was a terrific experience and I will never forget the simple story that was told at the outset about a mother trying to resolve a dispute over an orange. Her two children were arguing over the last orange. The mother took the orange away from them, cut it in half and gave each a half, thinking she had finally resolved their argument. The little boy took the skin off the orange, threw it away and ate the fruit. The little girl took the skin off the orange, used it for some baking and threw away the fruit. The message here is that if the mother had taken the time to find out what they really wanted, they both could have had 100% satisfaction. That’s the way mediation works.

During our discussion, Elinor and I reviewed the fact that it can be entered into before or after litigation has started. In fact, more often than not, parties who have tired of the battle in court often opt out into mediation to get the dispute resolved.

Another process that is being used, particularly in the family law area, that is similar to mediation is called “collaborative law.” In this process, the lawyers and clients sign an agreement to negotiate in good faith with each other. If a settlement is not reached, the parties agree that the lawyers must be discharged and new lawyers hired if the matter is to go to court. This offers a cost disincentive and encourages them to resolve the dispute in the collaborative process. It is similar to mediation, with the lawyers both acting in mediation type roles, urging the clients to find creative solutions.

Arbitration is more akin to a private judge. There are many experienced lawyers and retired judges who now act as private arbitrators. ADR Chambers offers a wide range of expertise and experience in this area. I noted with Elinor during our program that Bob Rae, the former Premier of Ontario, has recently joined their roster as a mediator/arbitrator.

There is still a role for lawyers in these alternatives to the court. Clients still need to double-check the solutions that are being considered. Lawyers are needed to ensure that the deal, once reached, is buttoned-down and incorporated in an enforceable agreement.

Elinor and I reviewed the cost of arbitration with an experienced arbitrator running at about $300.00 - $500.00 an hour. This may seem like just an additional expense, but when you consider that it is divided between the parties, that the process they follow is tailored to their needs and that there are rarely delays in an arbitration (as there are very often in the court system), the process quickly becomes very affordable. As I mentioned during the program, it has gotten to the point where people cannot afford to stay in the court system because of the delays. For more information about ADR, see Chapter 1 of my book “Strictly Legal: Things You Absolutely Need to Know About Canadian Law,” where I review “Ten Things You Absolutely Need to Know About “the System.”

We will definitely be seeing more and more of alternative dispute resolution and, in particular, mediation and arbitration in the future.

Michael G. Cochrane, B.A., LL.B.

This entry was posted on Monday, December 3rd, 2007 at 1:30 pm.
It is categorized under Miscellaneous.
You can follow responses through the RSS 2.0 feed.