ADR Canada regularly assists organizations of all kinds to develop and administer ADR programs designed to resolve disputes between various parties. This may include disputes between private parties within an industry or disputes between organizations and their customers, clients, patients or employees.
Many organizations simply do not have the time, resources or know-how to recruit qualified ADR professionals, design workable systems or administer cases effectively and efficiently. These organizations, nevertheless, wish to reap the rewards of ADR. Having ADR available demonstrates a willingness on the part of an organization to assist the parties in resolving disputes and avoids the high costs of litigation and protracted conflict.
In addition when ADR processes are administered by a neutral organization such as ADR Canada this creates the necessary distance between the ADR professionals and the party paying for ADR services. This distance ensures that there is neither bias nor the perception or apprehension of bias.
By outsourcing mediation and arbitration to ADR Canada, organizations can receive all the benefits of an ADR regime, without having to acquire the expertise necessary for a successful program.
Background and Experience Providing Corporate/ Organizational Services: An Established Track Record of Excellence
ADR Canada regularly refers lawyers and members of the public to ADR professionals, for a nominal fee. ADR Connect, an electronic tool that will allow members of the public to select professionals that meet their needs, is presently being enhanced and upgraded and will be available at our web site in a matter of weeks at no charge.
Administration and Appointment under the National Rules
In 2002, ADR Canada developed and published the National Arbitration Rules and National Mediation Rules. These Rules are available in both official languages. ADR Canada appoints arbitrators and administers cases pursuant to these Rules for a fee.
Commercial contracts drafted by law firms of all sizes across the country commonly contain a clause indicating that any dispute that arises with respect to the contract will be administered by ADR Canada, or one of its affiliates, pursuant to the National Arbitration Rules. Parties can also agree to submit to the rules in the absence of a contractual term.
Since 2000, ADR Ontario has administered the resolution of disputes between drivers and Highway 407 over fees charged to highway users.
Amex Bank of Canada
In 2006, AMEX selected ADR Canada to appoint arbitrators to resolve complaints between Amex Bank of Canada and its credit card holders. This program is widely advertised to card holders and is incorporated in the standard card holder’s agreement.
Ontario Ministry of Health and Long Term Care/ Ontario Association of Community Care Access Centres
Since 2006, ADR Ontario has worked with the Ontario Association of Community Care Access Centres, on behalf of the Ministry of Health and Long Term Care, to design and administer a system that would provide Independent Complaint Facilitators (ICF's) to assist in resolving complaints between Community Care Access Centres and their clients. ADR Ontario regularly appoints ICF's from a qualified and specially selected roster of its members and administers these cases.
ADR Canada is currently providing KPMG with comprehensive services for the resolution of disputes involving employees and former employees of KPMG who are part of a class action law suite for overtime compensation. ADR Canada has provided KPMG with arbitration and mediation rosters to service employees located across Canada and in both languages.
To reap the rewards of ADR through outsourcing, a number of points are worthy of careful consideration.
It is a serious mistake to assume that common sense and “being good with people” are sufficient for effective mediation or facilitation, or that a law student without specific training in mediation or facilitation can mediate effectively. Legal skills are very different from the skills and training applied by a mediator or arbitrator or facilitator.
ADR Canada’s Chartered Mediator Accreditation Committee and Chartered Arbitrator Accreditation Committee award the Chartered Mediator (C.Med.) and Chartered Arbitrator (C.Arb) designations respectively. These are the only official Canadian designations available to seasoned practitioners and demonstrate a high level of achievement.
To obtain this credential, a mediator must have over 180 hours of training. He or she must also have mediated a certain number of cases and must demonstrate considerable skill through interviews and role plays. To obtain the C.Arb. accreditation, an arbitrator must, similarly, demonstrate a high level of training and experience.
Organizations often need assistance determining what level of experience is required in a particular context. ADR Canada is available to provide guidance on this issue. When an organization comes to ADR Canada to have us develop a roster or to set up or administer an ADR system, we consult with highly-experienced mediators and arbitrators, often from relevant backgrounds, to determine the criteria, level of experience and training required in a particular situation. We also set up a committee to assist with the selection of roster members and the creation of a customized list.
It is important to assess what is at stake for the parties in order to select a facilitator, mediator or arbitrator with appropriate training and experience for that particular case. Will the mediation settlement agreement or arbitration ruling require a party to pay a large sum of money, spend time retraining (perhaps at his or her own expense) or doing community work?
Where the stakes are significant, both parties will want to know that the person conducting the ADR process is a skilled, trained individual who has been thoughtfully selected to ensure the best possible outcome with the least possible cost and stress to the parties.
3. How Much Should You Pay the ADR Professional?
Mediators and Arbitrators can charge anywhere from $150 to $600 per hour. These professionals do not ordinarily provide volunteer services unless they are specifically contributing to a charitable organization or cause, or unless they are relatively new to the field and are hoping to gain some experience. That being said, most mediators and arbitrators will recognize that a non-profit or government agency cannot pay the same rates as a large corporation, and may accept an assignment with a lower rate if it is of interest to them and similarly if a particular private case interests them or fits their schedule.
4. Where Should the Mediation, Facilitation or Arbitration Take Place?
It is always better for the parties to meet face to face. Practical realities of time and distance may also determine the location and even whether or not sessions can be conducted over the telephone or, increasingly in arbitration, by video-conference and on-line.
Depending on the situation, considerations may include some or all of the following:
- Who bears the costs of transportation and /or accommodation if one or both parties and/or witnesses must travel?
- Who bears the cost of transportation if the ADR professional travels to the location of the parties? Will the ADR professional be paid for travel time?
- Do you appoint ADR professionals in different regions throughout Canada so individuals are serviced by local mediators and arbitrators?
- Is telephone, video-conference or on-line mediation, facilitation or arbitration feasible?
- Cost of telephone communication
- Does the organization have offices/regional offices where a facilitation, mediation or arbitration could take place?
ADR Canada does not accept liability for the conduct of professionals whom it refers. Our members are, however, required to carry a minimum of $1 million insurance while providing services on a roster.
6. Without Prejudice Hearings in Mediation
Most mediations are conducted on a “without prejudice” basis. This means that anything said in a mediation cannot be used in a subsequent or concurrent proceeding. This allows the parties to be more candid with one another and may facilitate settlement. Unless otherwise agreed, a mediator’s notes are completely confidential.
7. Expected Volume of Cases
It is often a challenge to set up a program without sufficient information as to the volume of cases to be expected. The number of cases can also be influenced by the degree of awareness complainants, clients, customers or members of the public have that there is a forum available for dispute resolution.
In turn, advertising the availability of an organized ADR process and procedure demonstrates to the public, client or customer that an organization is actively taking responsibility for the interests of its target market. A functioning complaint and facilitation system demonstrates the extent to which an organization cost-effectively accepts responsibility and accountability for the service it provides.
What Services Can I Obtain from ADR Canada?
Option 1: Advertising to ADR Members
An organization can provide ADR Canada with an advertisement inviting applicants to apply directly to their organization to be placed on a roster. ADR Canada will e-mail this ad to its members and affiliates, and/or post the opportunity on its web site. ADR Canada does not charge for advertising this opportunity to its almost 1600 members.
Under this option it is up to the organization to develop criteria, articulate where and when sessions will take place, how facilitators, mediators or arbitrators will be paid and at what rate, determine who will cover travel and facility expenses etc., and to draft the ad. The organization must then screen and select roster candidates with appropriate qualifications, (credentials, training, insurance, practice experience, etc), develop protocols, train and communicate with roster members, administer the cases, deal with complaints about the mediation, facilitation or arbitration etc., without ADR Canada’s involvement.
Option 2: Advertise For and Select Roster Members
ADR Canada will assist the organization:
- In determining criteria and qualifications required
- With conceptualizing the basics of the system (for the purposes of the ad only) so that roster candidates have sufficient information about the system to apply to the roster, eg., where will the work take place, what facilities will be used and where, will travel time and expenses be paid, etc.
- In drafting the ad
- By circulating the ad to ADR Canada members, applications to be sent to ADR Canada.
ADR Canada then screens and selects the facilitators, mediators or arbitrators and provides names of roster members to the organization.
Option 3: System Development
In addition to the services under Option 2, ADR Canada assists the organization:
- To develop a system that the organization can then administer.
This would include everything from determining how, where and when sessions will take place, the process to be followed, how facilitators/mediators will be paid and at what rate, who will cover travel and facility expenses etc., training and orientation of facilitators, to setting up a complaints system.
Option 4: Case Administration and System Maintenance
- Includes Option 2 and 3 services with the addition of case administration fees that include in-take/administration services, case referral services, case management and billing.
System Maintenance: Annual Fee
- Requirements change over time, necessitating ongoing changes in the system, communication with roster members, training etc.
The fees of individual ADR professionals are in addition to fees charged by the ADR for the services outlined above.
If you are interested in further information on any of these options please contact:
Mary Anne Harnick