Your Clients will thank you for referring them to an ADR Professional
Conflict is inevitable. It can throw a wrench into the best laid plans. Let it run its course and it can ruin a partnership, a business relationship, a workplace, even a career, wasting time and resources. Help a client deal with conflict proactively and professionally - so he or she can stay focused on their business and long term interests – and your clients will have you to thank.
That’s why lawyers, accountants, engineers, architects – any professional committed to the well-being and success of their client – needs information on ADR. That’s why you need to understand relevant ADR concepts, form alliances with ADR professionals, actively refer clients to mediators and arbitrators and develop an in-depth understanding of why, where and when ADR can be useful. Understanding the fundamentals of negotiation, mediation and arbitration and the other services that are part of the ADR continuum will allow you to assist your clients in timely fashion, before a conflict takes on a life of its own.
Your understanding of the benefits of ADR is real value-added you can provide to your clients.
What is Alternative Dispute Resolution?
The continuum of services known as Alternative Dispute Resolution includes all dispute resolution services that keep a client out of court. “Alternative” is the alternative to court.
The ADR Continuum
The continuum moves from resolution processes that leave the settlement options in the hands of the parties, to those which place authority for resolution in the hands of a neutral third party. The continuum can include negotiation, early neutral fact finding or evaluation, mediation (facilitated negotiation), restorative justice, cooperative settlement conferences, judicial settlement conferences, med-arb, mini-trials and arbitration.
The earlier in the life of the conflict that a resolution process is applied and the more that the responsibility for resolution lies with the parties, the better off the parties are, in terms of cost, time, privacy and the maintenance of relationships. After all, the solution to a dispute that parties devise for and by themselves will be easier to live with than one that is imposed upon them.
When you as a professional notice that your client has a problem - or a situation that might lead to a problem - and you assist them in resolving it quickly and cost-effectively, you have provided a value-added service.
The following table compares the basic processes of negotiation, mediation, arbitration and litigation:
How the Different Processes Work:
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How it Happens
Who is Involved
How does the process work
2 or more parties communicate with each other and make decisions
The parties determine the process
Contract is final and binding
By agreement/ contract
A neutral third party acts as communicator and facilitator to help parties make their own decisions to resolve the dispute.
A neutral third party leads the parties through stages in private, caucus and together.
1. Opening Statements
2. Defining the issues
3. Developing understanding of issues
4. Developing solution
Written or verbal agreement which morally or legally binds the parties
By agreement / contract
A neutral third party acts as decision-maker
By e-mail, fax and conference calls, the arbitrator leads the parties through stages:
1. Parties structure proceedings and schedule
2. Submission of claims, preliminary matters, defence, answers, evidence, argument
3. In person hearing if requested
4. Cross examination
5. Summation. (Unless parties agree to a less formal process)
The arbitrator’s award is final and binding on the parties and enforceable by the courts
Either party may initiate
Judge acts as decision-maker
Judge takes the parties through stages:
1. Opening statements
2. Argument / evidence
3. Examination in chief
4. Cross examination
A decision by the Judge which is final and binding on the parties subject to the right of appeal.
Can You as a Professional Provide Your Client With ADR Services?
You may be able to assist your clients in negotiations and assist in the resolution of some disputes based on your own training, skill and experience. Many professionals benefit from taking courses in conflict management. The problem, however, is that with respect to your clients - you are not neutral – and the hallmark of mediation, arbitration and most of the services on the continuum and the reason the process has credibility and buy-in from the parties, is that the dispute resolution professional is a “professional neutral.” Not only is the ADR practitioner specifically trained in his or her specialty, but any previous, existing or potential contact or relationship with a party must be disclosed to the parties from the outset. If the parties do not agree to waive any such “conflict of interest,” a different mediator will be selected.
In addition to an accountant or other professional referring clients to mediation or arbitration, such professionals may also be interested in honing their own negotiation skills. ADR courses can assist a professional to assess his or her own negotiation style, learn how it interacts with other styles, understand concepts of negotiation, including principled negotiation, overcoming obstacles, dealing with difficult situations and unreasonable people and strengthening relationships.
Many professionals have found that courses in negotiation provide power tools when it comes to negotiating on their own, or their clients’ behalf. For more information see the list of approved courses listed on the ADR Institute of Ontario web site.
Generally speaking, mediation is a voluntary process. The parties sit down with a mediator but the mediator does not make a decision as to who is right and who is wrong. The mediator facilitates the negotiation between the parties and will assist the parties in arriving at their own solution by helping them:
- look beyond positions taken and realize what their interests really are;
- Think creatively about how these interests can be satisfied.
An ADR professional will assist the parties to look behind their “positions” to determine what their interests are. What stands at the heart of the problem? What are the parties’ real, and often unspoken, goals?
To use Roger Fisher’s example in “Getting toYes”, the seminal work in the world of ADR, two people are fighting over an orange. Rather than each getting a half, if you delve deeper, you find that one person wants the meat of the orange to make juice and one wants the peel to make candied orange peel. Because the parties moved out of their “positions” and considered their “interests” each party was able to get 100% of what they needed. The mediator got to the heart of the problem and the solution was a win-win for both parties.
The Qualified Mediator (Q.Med) designation signifies a working professional with the required training and some cases under his or her belt.
Arbitration is a process on the right side of the continuum. It is usually binding on the parties, except for the right of the parties to go to court for judicial review of a decision, which right is restricted to certain grounds of appeal. Advantages over litigation include the following
- The parties select the Arbitrator and can choose someone with experience in the area. A judge appointed to hear a case may have no background in the matter.
- Proceedings are confidential
- Process is tailored to the parties
An Arbitrator is accepted to have the following expertise:
• Knowledge of the Laws of Tort/Delict, Evidence and other applicable laws related to arbitration in the jurisdiction of the arbitration;
• Knowledge of the governing Arbitration Act (Law) in the applicable jurisdiction.
• Knowledge of ADR Canada's Code of Ethics and Rules of Conduct governing the conduct of an arbitrator generally and recognition of the importance and necessity to abide by same;
• The skills required to hear and evaluate the evidence in accordance with the applicable procedural rules, including the ability to assess conflicting points of view, evaluate the validity of arguments presented and determine the award;
• Knowledge of the arbitration process and possession of the skills to carry out the protocol required to initiate and complete an arbitration engagement, including the formalization of the engagement, procedures during the arbitration hearing and handing down the award.
Finding the Right Professional
To locate a mediator or arbitrator, or any other professional neutral use our custom Search engine: ADR Connect via the green button on our
. You can search for a professional practising in a particular location, one with special expertise in a specific area, one who speaks a particular language etc. The database will allow you to review the qualifications of each of our members, and to find a Qualified or Chartered Mediator or Chartered Arbitrator suited to your specific needs. For personal assistance in using ADR Connect call the ADR Institute of Ontario.
Bullet-proof your client’s agreements with an ADR clause citing ADR Canada Rules
Business and other agreements should always have an ADR provision stating that any dispute arising from the agreement should be resolved by mediation and/or arbitration – or your clients can end up in court with no opportunity to attempt settlement. In addition, to make sure your client doesn’t get dragged into a foreign jurisdiction your clients should site The National Mediation Rules and/or
The National Arbitration Rules of the ADR Institute of Canada. Many of Canada’s largest and most sophisticated law firms cite these Rules.
The rules provide the parties with a process and time lines for conducting the mediation or arbitration and a mechanism for choosing an arbitrator or mediation.
For assistance in selecting a mediator or arbitrator, or to receive a hard copy of The National Mediation Rules or The National Arbitration Rules call: 416-487-4447 or 1-877-475-4353 [email protected]