Written by Irvin Schein and originally published at irvinschein.com.
As the sidebar panel to my blog indicates, I now have my Master of Laws in Alternative Dispute Resolution and I have begun to work as a mediator as part of my practice. It occurs to me, however, that there may be some readers of this blog who aren’t clear on the meaning of the phrase.
Alternative dispute resolution, or ADR, refers to methods of resolving disputes without litigating them through to a trial. The most common methods of ADR are arbitration and mediation.
Arbitration is a process which has a number of similarities to litigation. In arbitration, however, the parties choose an individual to act in the role of a judge. The parties will usually make up their own procedural rules, which may or may not reflect the types of procedural rules that govern litigation proceedings, and the arbitrator chosen by the parties will conduct a hearing and render a decision in a way that is similar to what a judge would do.
There are a number advantages and disadvantages to arbitration compared to litigation. I have commented on this in a video I prepared some time ago which you can find at http://www.youtube.com/watch?v=Y_mZnOUmnhs.
I have been trained as an arbitrator and I am on the roster of the Canadian Commercial Arbitration Centre. So if you are involved in an arbitration, either because you are a party to a contract containing an arbitration clause and a dispute has arisen, or because you are involved in a dispute with someone who has agreed with you to refer the matter to arbitration as opposed to litigation, I would be happy to assist.
Mediation is completely different. A mediator is a non-party neutral who is hired by parties to a dispute, to try to help them settle their dispute without going through a lengthy and expensive trial. Unlike an arbitrator, a mediator does not conduct a hearing and has no power whatsoever to make decisions or require anyone to do anything.
In Toronto, where I practice, and in a few other cities in Ontario, mediation is a mandatory part of the litigation process. Cases commenced in this jurisdiction must go through mediaion before they can be called for trial. In other jurisdictions, mediation during the course of a lawsuit is voluntary.
Naturally, there is no rule that prohibits parties from mediating a dispute even before a lawsuit has started.
Most of the training that I received in my LLM course related to mediation. One of the papers that I authored during the course, which I entitled “The Role of Anger in Mediation”, was published in September 2013 in a publication called the Advocate’s Quarterly (Vol. 41, No. 4). If anyone is interested in reading the article and cannot locate it online, please feel free to e-mail me.