An effective tool on the spectrum of alternative dispute resolution strategies.
In the course of any legal dispute, litigation is one of a variety of means of dispute resolution, and proceeding to trial is not inevitable if both parties are open to other methods of resolving their dispute.
Although alternative dispute resolution (ADR) strategies are often thought of as “alternative” to litigation, ADR strategies fall on the same spectrum of conflict management solutions as litigation and, when desired, can bring about a resolution without the need for a trial. In fact, ADR strategies are most often used in the context of litigation.
ADR strategies focus on delivering solutions through mutual consent of the parties. The most commonly utilized methods to resolve a dispute without trial are: negotiation, mediation, arbitration, and med-arbitration. Of these, negotiation and mediation are most common.
When disputing parties are open to alternative methods to resolve their differences, effective mediation and facilitated negotiation led by trained mediators and lawyers have proven to be particularly effective. These strategies can result in reaching mutual consensus among disputing parties and settling disputes early, rather than going through formal litigation processes and court proceedings. Typically, however, the parties are involved in litigation when they resort to ADR strategies. Some litigation processes can be assistive in ultimately reaching an out of court resolution. In fact, some jurisdictions have a court-mandated mediation process, thus incorporating ADR as a part of the formal court process.
Mediation is often preferred by clients not only for its efficiency and cost-effectiveness, but because it allows parties to participate in their own resolution rather than having a decision imposed upon them. Parties involved in mediation can feel empowered and have control over resolving their own problems. They have an opportunity participate in the solution in a voluntary way, and no binding decision is made without agreement by both parties. It is a constructive solution that often meets their real needs and interests. Parties may wish to rely heavily on their lawyer advocates during the mediation process, and in this way they still benefit from legal counsel as part of this alternative to trial.
ADR strategies lend themselves well to both simple disputes and highly complex, emotionally-charged cases where the monetary stakes are high, such as Estate disputes and Personal Injury claims. In such cases, when parties have view to finding a mutually acceptable way forward, a skilled mediator and lawyer advocate have important roles in assisting the parties in reaching a mutually satisfactory and agreed settlement of the dispute.
For privacy reasons, many individuals involved in estate disputes would prefer to settle their disputes out of court, thus ensuring their finances and other personal information do not become public record. Furthermore, an out of court settlement offers the ability to craft solutions that a court cannot offer, and to even offer non-monetary solutions to issues in dispute. Mediation can be the key to resolving an estate dispute out of court with a satisfactory resolution. Estate litigation lawyers who offer strong mediation skills are therefore of great value in estate disputes, particularly when the value of assets is significant.
With some of the highest housing prices in Canada, British Columbians have one of the highest median family net worth in the country. Many estates are worth considerably more than $1M, with many of BC’s wealthiest individuals having invested in land or real estate, raising the value of their estate even further. Considering we are in the midst of one of the largest intergenerational transfer of wealth in Canadian history over the next 20 years, mediation in estate disputes will no doubt continue to be the most desirable means of resolving estate disputes.
Personal Injury claims can also be resolved using mediation and facilitated negotiation as a resolution strategy. Choosing mediation does not mean that you forego your right to be represented by legal counsel or the right to have your claim dealt with by the courts. But, most personal injury cases do settle out of court. Each case is unique, and thus the dispute resolution strategy, including timing of settlement discussions, should be tailored to the case. Sometimes the case can settle quickly after the beginning of negotiations. Other times the negotiations can be protracted and have months or even years between offers. Sometimes negotiations fail entirely and the case goes to trial.
Mediation can be initiated at any point during the life of a dispute. In general, the process involves a meeting between the disputing parties, their lawyers, insurance representatives (if applicable) and the mediator to discuss the dispute and explore options for settlement.
The mediator can establish a structure in which the parties can express their views, explore options for settlement and avoid many of the obstacles involved in direct negotiations. The majority of mediations take a day or less to complete, at a fraction of the cost of litigation. Mediation dramatically reduces the costs of legal fees, removes the threat of time-consuming litigation, and allows parties to move on with their lives, beyond the dispute.
Of course, there are situations where there are valid reasons for a plaintiff to choose litigation as a course of action, but when mediation is an option, it is an invaluable tool for managing conflict.
Krista Simon, Partner at Hammerberg Lawyers LLP, has been resolving disputes for her clients for over 16 years. Her practice focuses on Personal Injury and ICBC claims, disputes related to Wills and Estates, and helping people who have been unfairly denied their insurance benefits. She is an experience trial lawyer, as well as being highly skilled in alternative dispute resolution. She believes that mediation is often the best way to transform challenges into the best outcomes for her clients. Simon has studied mediation at Harvard and Pepperdine universities and is currently pursuing a Masters of Law degree at York University’s Osgoode Hall Law School to further her expertise in dispute resolution.