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Alternative Dispute Resolution - Humber College

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Learn the core principles of negotiation, mediation and arbitration and apply this knowledge to resolve disputes between individuals, businesses and more.

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Recognized as Canada's preeminent ADR professional organization, we set the benchmarks for best ADR practices in Canada, promote conflict resolution through arbitration, mediation and other forms of ADR, and provide leadership, value and support to our members.

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DefinitionAny method of resolving disputes without litigation. Abbreviated as ADR. Public courts may be asked to review the validity of ADR methods, but they will rarely overturn ADR decisions and awards if the disputing parties formed a valid contract to abide by them.

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Why Is an Arbitrator Important?

Arbitration is a popular form of alternative dispute resolution that is used by many individuals and businesses to resolve disagreements in place of pursuing a lawsuit. Knowing the role an arbitrator plays will help you understand the process and be more effective if you participate in arbitrations.

Definition and Role of an Arbitrator

An arbitrator reviews testimony and evidence presented by the disputed parties at a hearing and resolves the dispute by issuing a decision that may include an award of money. You can think of an arbitrator as a private judge hired by the disputing parties to resolve their dispute. If the arbitration is binding, the parties cannot seek a reversal of the decision in court except under very limited circumstances. However, the successful party can seek help from a court in enforcing the arbitrator's decision.

An arbitrator serves as the decision-maker and 'referee' in an arbitration proceeding, much like a judge during court litigation. The arbitrator is bound by the rules outlined in the parties' arbitration agreement. If he is a member of a special arbitration organization, such as the American Arbitration Association, he will be bound by the rules of that organization as well, including a set of ethical rules.

An Arbitrator's Duties

An arbitrator has several duties. Among them are:

Interpreting and applying the rules and laws applicable to the arbitration
The applicable rules should be outlined in the arbitration agreement. The parties may also designate a particular state's law to govern the dispute in the arbitration agreement.

Managing the scope of discovery that can be undertaken by both parties
Discovery is a formal process of investigation to determine facts relevant to the dispute. The investigation can include taking witness statements and reviewing documents required to be disclosed by the other disputing party.

Conducting the arbitration hearing in which both sides of the dispute may submit testimony, other evidence such as documents, and arguments
Each side's position may be summarized in a written document, often called a statement of the case, and be submitted to the arbitrator to review as part of the hearing process.

Making a decision resolving the dispute based on the testimony, evidence and arguments submitted by both sides of the dispute
A decision may include granting an award of money.

An Example of Arbitration

Let's say you hired a general contractor to renovate your kitchen. You signed a contract, which included the expected cost of the renovation and the time for completion. The project is completed three weeks late, was over-budget by about 11% and you believe the work was shoddy. Upon review of the contract, you see you agreed to mandatory binding arbitration, using an arbitrator from the Better Business Bureau.

At the hearing, you meet with an arbitrator at his office. You present the arbitrator a statement of your case, which includes the facts you believe are relevant and your argument. The arbitrator conducts a hearing where he permits you to make an opening statement about your side of the dispute. The general contractor then presents his opening statement. You and the general contractor present evidence, such as the contract, pictures of the finished kitchen and testimony from subcontractors. You make a final argument, and the hearing concludes. Sometime later, the arbitrator issues a written statement that describes the relevant facts, the law applied and the decision.

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role & qualifications - video & lesson transcript | study.com

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Arbitrator: Definition, Role & Qualifications - Video & Lesson Transcript | Study.com

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Arbitration is a popular form of alternative dispute resolution that is used by many individuals and businesses to resolve disagreements in place of pursuing a lawsuit. Knowing the role an arbitrator plays will help you understand the process and be more effective if you participate in arbitrations.

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Hello, I'm Nick Slinko of the Feldstein Family Law Group.

I recently started an alternative dispute resolution trilogy amidst the Feldstein Family Law Video Files. Mediation has been explored, and now it's time to look into the world of Arbitration. In an effort to try and avoid the premise that a sequel is never as good as its predecessor, I am going to take some time to also address a hybrid form of ADR - mediation-arbitration.

Arbitration

Arbitration shares some similarities with mediation, but there are also some significant differences. Like a mediator, an arbitrator is a neutral third-party with specific training who is mutually selected by the parties. However, the role of the arbitrator is quite different than that of the mediator, as arbitration is typically binding on the parties, whereas mediation is non-binding. The parties are giving evidence to the arbitrator and giving him or her the power to make a decision regarding a matter or issue in a manner similar to the way a Judge would. This decision can ultimately be entered into the Court record, if the matter is going through litigation. There is legislation dedicated to this very process, namely the Arbitration Act.

Some litigants prefer arbitration to a traditional trial, as the process is entirely confidential (unlike the public forum of Court), which can be a big advantage depending on the nature of your work and/or lifestyle, and your desire for privacy. You also get to select your own decision-maker, whereas a Judge would be assigned to your case without your knowledge or input. There is also something to be said about the speed and ease of scheduling arbitrations as opposed to Trials before a Judge.

In order to enter into this process, the parties engage in an Arbitration Agreement which outlines the entire process. Like mediation, Arbitration cannot proceed in situations where there is abuse, violence, or a power imbalance between the parties.

Mediation/Arbitration

I will now move on to the hybrid process, which is calledMediation/Arbitration or "med/arb," for short. This is referred to as a hybrid although it does include both the separate processes of mediation and arbitration in two separate stages. Again, both parties must select a neutral third-party with special training. First, the mediator/arbitrator attempts to assist and guide the parties in reaching a voluntary agreement through mediation. Second, if the mediation is unsuccessful, or if either party feels it is unproductive, then a switch to the arbitration process can be requested, where the mediator/arbitrator will make the final decision. Ultimately, the mediator/arbitrator is the person with the power to decide that the mediation stage has been exhausted, and arbitration has become necessary.

When deciding if the med/arb process is right for you, there are a number of factors to consider. First, and for many people, the most important, is cost. While med/arb may be less costly than going to trial, it can be frustrating for people to pay for the mediation stage, only to have to pay further fees for arbitration. Also, in order to participate in med/arb, a binding Agreement must be signed, meaning that the parties are then required to participate in the process all the way through. You are therefore stuck with your mediator as your arbitrator, even if you feel part-way through the process that they disagree with your position. However, having your mediator as your arbitrator also enables them to provide some opinions during the mediation process, which can hold more weight and encourage people to settle more quickly.

If you are looking for a mediator, an arbitrator, or a mediator/arbitrator, Andrew Feldstein of our office provides all of these services. If you are planning on getting involved in the alternative dispute resolution process, any of the lawyers at our firm would be happy to assist you in your preparation and drafting. For more information on the med/arb process, give us a call at (905) 581-7222 to set up a consultation.

I'm Nick Slinko and I'll see you next time when I will be discussing the Collaborative Family Law process.

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Alternative Dispute Resolution Part II: Arbitration and Med/Arb

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Hello, I'm Nick Slinko of the Feldstein Family Law Group. I recently started an alternative dispute resolution trilogy amidst the Feldstein Family Law Video Files. Mediation has been explored, and now it's time to look into the world of Arbitration.

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Conflict Resolution Processes

Once, lovebirds Harold and Melba married and had a few kids. After several years of bickering over laundry, bills and Harold's weekly poker game, they decided to call it quits. However, during the marriage, they accumulated quite a few assets, like a house, a boat and several vintage cars. Unable to settle on the splitting of their stuff, the duo decided on dispute resolution.

Dispute resolution is a process of bringing in a third party to help sort out the situation through communication and negotiation. There are several types of resolutions, and they are mainly used in employment and legal disputes.

The three main forms of dispute resolution we will focus on are:

Now, we will explore each form of dispute resolution in detail.

Negotiations

Negotiations occur when two parties set forth the type of remedy each desires, and try to reach some sort of an agreement that satisfies everyone involved. In the best-case scenario, negotiations are done between the parties and both come to a happy agreement. The first step towards dissolving Harold and Melba's assets may be negotiations.

This is how a typical negotiation may look:

1. Each party will prepare a list of what each party wants (house, boat, car, money)

2. Each will decide upon a timeframe to acquire the assets, and

3. Each will have an alternative or other options for the settlement of assets

Once agreement has been reached, the parties will create a written statement to reflect the terms of the negotiated assets. While Harold and Melba tried very hard to divide the dowry fairly, each wanted what the other person wanted. It was a mess!

It is important to note that each state court functions differently, but in New York, Harold and Melba would be referred to mediation. Mediation is an alternate form of resolution that involves assigning a neutral third party to assist the couple in coming to a fair and equitable agreement on the distribution of assets.

Mediation is not always voluntary. Sometimes the court will order mediation, especially if the divorce dispute involves child support, alimony or child custody. Not to confuse things, remember negotiations and mediation are not solely used for divorce situations. Both alternative resolutions are used for employment issues as well. For example, at work, employers and employees use collective bargaining to settle disputes. This is negotiations between the employer and the employee to settle issues like work conditions, salaries and benefits.

To clarify, collective bargaining is usually done when employees are represented by a union, or a collective group of employees with a common interest. Mediation is also successful in resolving employee disputes. It is beneficial for a company to go this route, because the sky-high cost of hiring legal professionals can crush a company financially.

Let's say Jolie was terminated without cause from her position at Westwood Dynamics, Inc. Jolie can do a few things: She can walk away with only her potted plant and her ego, she can sue for millions of dollars, or she and her former employer can enter into mediation to come to a mutually satisfying resolution.

What will happen is:

1. Both parties will identify the issues,

2. Propose possible options for resolution,

3. Evaluate each option for fairness,

4. Choose the best option, and

5. Prepare a written agreement.

Jolie wanted to sue Westwood for everything they have. Westwood wanted Jolie to just go away. The mediator wanted to find a happy medium. In Jolie's case, the outcome may be that she will receive a severance package, including a monetary settlement and a letter of recommendation.

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alternative forms of dispute resolution: negotiation

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mediation & arbitration - video & lesson transcript | study.com

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Alternative Forms of Dispute Resolution: Negotiation, Mediation & Arbitration - Video & Lesson Transcript | Study.com

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Once, lovebirds Harold and Melba married and had a few kids. After several years of bickering over laundry, bills and Harold's weekly poker game, they decided to call it quits. However, during the marriage, they accumulated quite a few assets, like a house, a boat and several vintage cars.