Outsourcing Alternative Dispute Resolution to ADR Ontario
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, still wish to reap the rewards of ADR - only the more serious cases go forward, cases are heard more quickly, parties can continue to work together with less acrimony, costs are lower. Having ADR available demonstrates a willingness on the part of an organization to be accountable and responsible to the target market at the earliest possible stage so that no one has to go to court.
Other organizations want administration and appointment handled by a third party neutral in order to create distance between the ADR professionals and the party paying for the ADR professional’s services, as well as to ensure that there is neither bias nor perception of bias.
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.
Membership in ADR Ontario indicates a basic level of training. To be a member of ADR Ontario, mediators and arbitrators must establish 40 hours of approved course work.
ADR Canada’s Chartered Mediator Accreditation Committee and Chartered Arbitrator Accreditation Committee also award the Chartered Mediator (C.Med.) and Chartered Arbitrator (C.Arb) designation 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 this credential, an arbitrator must have……
There is a significant difference of expertise between an ADR Ontario member with 40 hours of training and an ADR Ontario member who is a C.Med. or a C. Arb. Organizations often need assistance determining what level of experience is required, and ADR Ontario is available to provide guidance on this issue.
When an organization comes to ADR Ontario 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 different ADR professionals in different regions in Ontario so individuals are serviced by local mediators and arbitrators? This may also reduce travel time and costs.
- Is telephone, video-conference or on-line mediation, facilitation or arbitration feasible possible?
- Cost of telephone communication
- Does the organization have offices/regional offices where a facilitation, mediation or arbitration could take place?
ADR Ontario 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 Ontario?
Option 1: Advertising to ADR Members
An organization can provide ADR Ontario with an advertisement inviting applicants to apply directly to the organization to be placed on a roster. ADR Ontario will e-mail this ad to its members and/or post the opportunity on its web site. ADR Ontario does not charge for advertising this opportunity to its almost 700 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 Ontario involvement.
Option 2: Advertise For and Select Roster Members
ADR Ontario 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 Ontario members, applications to be sent to ADR Ontario.
ADR Ontario screens and selects the facilitators mediators and arbitrators and provides names of roster members to the organization.
Option 3: System Development
In addition to the services under Option 2, ADR Ontario 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 all of the above.
If you are interested in further information on any of these options please contact:
Mary Anne Harnick
416-487-4447 ext 104