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Resolving
disputes - think about your options

Table of Contents

Introduction

Conflict

What
is "dispute resolution"?

Negotiation

Mediation

Arbitration

When
should you consider DR?

How
do you convince the person you disagree with to participate?

Thinking
about your dispute resolution options?

Where
can you get more information?

Published by authority of the Minister of Justice
and Attorney General of
Canada
Government of Canada

by

Communications and Executive Services Branch
Department of Justice
Canada
Ottawa, Ontario
K1A 0H8
Tel.: (613) 957-4222
Fax: (613)
954-0811

© Her Majesty the Queen in Right of Canada, 1998
as represented by the
Minister of Justice

Catalogue No. J2-152/1998E
ISBN 0-662-27183-1

Printed in Canada

Aussi disponible en français
Les choix qui s'offrent à vous pour régler des
différends

Top of
Page

Introduction

The purpose of this pamphlet is to provide you with information to help you
think of different ways of resolving your disputes without going to court. You
will learn about some different dispute resolution options and how to find
people who offer services in the field. You can use this information to find a
process that best meets your needs.

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Page

Conflict

Conflict is a fact of life. We face problems and disagreements all the time:
at home, on the job, and in our neighbourhoods. Not all these disputes are
serious, and we may choose to ignore some without any consequences. However,
some are more serious and cannot be ignored. If they are not dealt with, they
may become worse and take time and money to resolve.

Going to court is one way of settling a dispute. However, it can be costly
and time consuming. Moreover, it is not always a satisfying process for the
parties involved. More and more, people are looking outside the courtroom for
quicker and potentially less costly alternatives for resolving disputes. This
pamphlet outlines some of these options.

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Page

What is "Dispute
Resolution"?

"Dispute Resolution" (DR) is the term used to describe a variety of ways of
dealing with disputes, including the option of going to court.

"Alternative Dispute Resolution (ADR)," a term you may have heard before,
refers to resolving disputes in ways other than going to court. This pamphlet
uses the term DR rather than ADR to remind you that there is a broader range of
dispute resolution options.

People get involved in many types of disputes. With the variety of DR options
available, you can choose the best method for dealing with your particular
situation. You may choose one way to deal with a child custody dispute whereas
an employment problem or a dispute with your municipality might call for
something different.

There are three commonly used methods of resolving disputes without going to
court:

negotiation

mediation

arbitration

These methods are described in this pamphlet and each involves a process.
Although the formal court process is not discussed in here, it too is an option.
In fact, sometimes the court will be the necessary route to follow. Remember
that you may often be able to deal with your problem informally through
discussions. Working together, you can try to reach an agreement that will suit
you both.

Dispute resolution covers a range of choices, from negotiating a
solution to going to court.

Each option should be viewed as a distinct process, but each can be used
alone or in combination. For example, in a process combining mediation and
arbitration (called "Med-Arb"), if the dispute is not settled through mediation
it proceeds directly to arbitration. These processes offer choices for resolving
your disputes.

In assessing which process may be appropriate for your dispute it is
important to keep certain things in mind. For instance, where one side has power
over the other or where one party feels intimidated or frightened it may not be
possible to resolve disputes fairly through processes such as negotiation or
mediation. Barriers arising out of gender or cultural differences may also make
it difficult for the parties to resolve the issues themselves.

If you have any concerns about the dispute resolution method that is
appropriate for you, talk to someone who knows the field. They can help you
choose the process that is best for you.

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Page

Negotiation

People who disagree can often get together to discuss the problem and reach a
mutual agreement. When people sort out a problem themselves, they can work out a
solution that best meets their own needs and interests.

Solving disputes through negotiation is a part of everyday life. For
instance, in a situation where your teenager asks you for the car keys, after
some discussion you reach an agreement on conditions for using the car and when
to return home. This is an example of negotiation.

Effective negotiation skills and methods can be learned. You can read books
or take courses to improve your negotiating technique. In some cases, you may
also prefer to hire a lawyer, advocate, or counsellor who has the expertise to
help you to negotiate or who can negotiate on your behalf.

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Page

Mediation

People involved in a dispute can ask a mediator, an unbiased and impartial
person, to assist them in their negotiations. Where negotiation has not been
successful, the mediator can often help to ease tension and encourage discussion
between the parties. The mediator can help the parties themselves find a
solution that can often result in a "win-win" situation, where everyone is
satisfied with the result. Participation in mediation may or may not be
voluntary. For example, some courts require that certain cases be referred to
mediation before a trial can be scheduled. Either way, the mediator cannot force
you to settle the dispute or to accept a particular solution.

A common reason for choosing mediation is that the mediator helps the parties
reach an outcome that satisfies them rather than one aimed at proving right and
wrong. Through mediation, parties are able to work together to reach a solution
which can be more creative than that which a court would impose. Courts are
somewhat limited in the remedies that they can provide to resolve disputes.

The cost of mediation is usually shared between the parties. In most cases it
is not necessary for lawyers to be present during the mediation process.

Situations that lend themselves well to mediation are certain family
disputes, business disagreements, contract disputes, insurance claims, as well
as employment and environmental issues, to name a few.

If gender or cultural differences are making it difficult to resolve issues
or conflicts or if there is such a clear inequality in bargaining power so as to
make you question whether you could resolve your issues through mediation, talk
to someone about your concerns. Choose the process that is best for you. The
section in this pamphlet entitled "Where to Get More Information" can help to
put you in touch with people who can help you make this choice.

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Page

Arbitration

When people in a dispute cannot resolve the dispute themselves, either
through face-to-face negotiation or with the assistance of a mediator, they can
agree to refer the matter to arbitration. In arbitration, a neutral person or
panel of people hears the facts and issues and makes a decision. Arbitrators are
often people who are experts in a specific area of the law or a particular
industry, especially in cases where the decision-maker needs to be knowledgeable
about a particular subject matter or business practice.

The arbitrator or panel is usually chosen by the parties together. If they
can't agree they can have an acceptable person or organization choose the
arbitrator for them. Otherwise, each can choose an arbitrator, and the two
arbitrators will then choose a third to make a panel of three. In some instances
parties may prefer to have their matter heard before a panel.

Arbitration tends to be less formal and quicker than going to court. The
parties can agree in advance on the ground rules for the arbitration (as opposed
to court procedures which are fixed). One or both parties may have a
representative speak for them at the arbitration hearing or they may speak for
themselves.

The arbitrator then makes a decision based on the facts, any contract between
the people, and the applicable laws. The arbitrator will explain how the
decision was reached. If the applicable law allows, you can decide yourself in
advance whether the arbitrator's decision will be final and binding or whether
it should be subject to review by a court if a party disagrees with the
decision.

The arbitrator may also make a decision on costs. Depending on how complex
the case is and how long it takes to resolve, arbitration usually costs less
than going to trial.

Top of
Page

When Should You Consider DR?

The sooner, the better.

As time goes by, it may become harder to agree on a solution that satisfies
everyone. Each side will become convinced they are "right" and the other side is
"wrong."

Your lawyer, if you have one, may suggest you try mediation before going to
court. Or, you may be advised that it would be cheaper and faster to have the
dispute go to arbitration. The fact is that most court actions settle before
trial. Using DR methods early can save both the time and money involved in
taking a dispute to court.

Even if you're already in court or have begun the process of going to court,
you can still use other DR options. In fact, many courts have established
dispute resolution programs that require parties to participate in some other
form of DR prior to proceeding with their court action. The court office or your
lawyer should be able to inform you of any such program in your community.

Top of
Page

How Do You Convince the Person You
Disagree With to Participate?

Not everyone will immediately agree to participate in a mediation or other DR
process. They may need more information about how the process works and whether
it meets their needs. They may also need some time to realize the cost and time
involved in taking the dispute to court.

Emotions are often highly charged. People may be angry or so intent on
proving the other "wrong" that nothing other than having their day in court will
appeal to them. Sometimes, merely waiting a few days or weeks can make a
difference and parties may be more willing to discuss the options more calmly
and openly.

If you need help to contact the other party to explain the advantages of
using other DR options, consider consulting a third party who is trained to act
as an impartial outsider to assist you. He or she can make a presentation on the
benefits of DR and answer any questions about the processes (see Where Can You
Get More Information?).

Don't be discouraged. Even if the other party insists on going to court,
remember that DR processes can be used at any time - even after a lawsuit has
been filed.

Top of
Page

Thinking About Your Dispute Resolution
Options

The following list indicates some advantages of using certain DR processes
described in this pamphlet:

Flexibility

There is much more room for creativity when you resolve your dispute
yourself or with the help of a third party. You can work together to arrive at
a solution that meets the needs of all parties.

Control

You will have more control over both the process and the outcome.

Personal Satisfaction

You are more likely to be satisfied with both the process and outcome
because you chose the DR process and played a more active role in resolving
your dispute and designing a solution that is best for you.

Lower Costs/Less Time

DR processes may save you both time and money. They are generally faster
and less complex than proceeding through the court system, and that can mean a
savings in legal fees and court costs.

Confidentiality

Dispute resolution process and results can, in general, be kept
confidential. (There are certain circumstances where the law does require
disclosure of information though, such as the "duty to report" suspected or
confirmed child abuse required by the Child and Family Services Act
in each province and territory.)

Getting at the Root of the Problem

Many disputes are the result of underlying problems. DR processes can get
at the issues which contributed to creating the dispute. At the same time,
they work towards a solution that is satisfactory for everyone involved.

Maintaining relationships

Disputes often involve parties who have a working or family relationship
and will need to continue to live or work together after the dispute is
resolved. These DR methods encourage people to work together at resolving the
disagreement which often results in improved relationships and perhaps in
fewer new disputes.

Agreements that last

Parties are more likely to comply with an agreement that they helped
design rather than one that was imposed on them.

When Should Disputes Be Left to the Courts to decide:

The issue of violence itself is not mediable. The courts may provide
better protection for parties who have been the victim of violence or threats
of violence. Further, where a power imbalance between the parties is so
pronounced that it cannot be properly managed, even by an experienced
mediator, the courts may be better equipped to handle the matter.

DR processes are generally confidential and therefore are not appropriate
if one of the parties wants the issue to be publicized or wants the outcome to
be seen as an example for other similar disputes.

Where there is a need to establish precedent, where the outcome of the
case could affect a great number of people or where a definite and broadly
applicable solution is required, the court would be the appropriate forum to
resolve the dispute.

Top of
Page

Where Can You Get More
Information?

Lawyers, social workers, psychologists and other professionals trained and
experienced in DR can all provide DR services. When choosing a DR professional,
look for someone whose skills and training seem most relevant to your situation.
Ask for references and speak to others who have used that individual's or
organization's services.

To Find a DR professional:

Check your library for further information.

Look in the yellow pages of your telephone book for professionals listed
under "mediation" or "family mediation" or professionals listed under
"arbitration" or "arbitration/mediation."

For additional information on DR options check with your "lawyer referral
service," the provincial law society, the Canadian Bar Association or a legal
aid organization.

Ask your lawyer or other adviser for a referral to a mediator or
arbitrator.

Contact your provincial public legal education and information
organization (see the addresses at the end of this pamphlet).

When selecting a neutral person you should consider the following
questions:

Was this person recommended to you by a reliable source?

Have they received mediation or other DR training from an established and
reputable centre?

Do they have appropriate knowledge for your type of conflict or problem?

Did they ask you questions to determine whether the process you have
chosen (e.g., mediation) is appropriate for your situation and whether they
are best suited to handle the case?

Did they carefully explain what mediation or other DR processes are and
how they differ from counselling or legal services? Did they ensure that you
understand the difference?

Did they discuss with you about other methods you have tried or considered
trying in order to resolve the conflict?

Do you feel confident that they will be able to remain impartial and not
favour one party over the other?

These are only a sampling of the kinds of questions that you may want to
consider. You may also want to talk to others who have used the services of a
dispute resolution professional. They may be able to offer you insight into both
the process they chose and the person they selected to assist them.

For more information contact:

Newfoundland
Public Legal Information of
Newfoundland
P.O. Box 1064, Station "C"
215 Water Street, 5th Floor,
Atlantic Building
St. John's, Newfoundland A1C 5M5
Phone: (709)
722-2643
Fax: (709) 722-8902
e-mail: http://www.justice.gc.ca/eng/dept-min/pub/dr-rd/index.html#top

Prince Edward Island
Community Legal Information
Association of
Prince Edward Island
1st Floor - Sullivan Building
16
Fitzroy Street
Charlottetown, Prince Edward Island C1A 7M8
Phone: (1-800)
246-9798 toll free in province
(902) 892-0853
Fax: (902)
368-4096
e-mail: http://www.justice.gc.ca/eng/dept-min/pub/dr-rd/index.html#top

Nova Scotia
Public Legal Education Society of Nova
Scotia
911-6080 Young Street, Halifax, Nova Scotia B3K 5L2
Phone: (902)
454-2198
Fax: (902) 455-3105
e-mail: http://www.justice.gc.ca/eng/dept-min/pub/dr-rd/index.html#top

New Brunswick
Public Legal Education and
Information
Service of New Brunswick
P.O. Box 6000, Fredericton, New
Brunswick E3B 5H1
Phone: (506) 453-5369
Fax: (506) 457-7899
e-mail: http://www.justice.gc.ca/eng/dept-min/pub/dr-rd/index.html#top

Quebec
Direction des
communications
Ministère de la
justice
1200, route de l'Église,
Sainte-Foy (Québec) G1V 4M1
Phone: (418) 644-3947
e-mail: [email-masked]

Ontario
Community Legal Education Ontario
119 Spadina
Street - Suite 600, Toronto, Ontario M5V 2L1
Phone: (416) 408-4420
Fax:
(416) 408-4424
e-mail: http://www.justice.gc.ca/eng/dept-min/pub/dr-rd/index.html#top

Manitoba
Community Legal Education Association
(Manitoba)
501-294 Portage Avenue, Winnipeg, Manitoba R3C 0B9
Phone: (204)
943-2382
Fax: (204) 943-3600
e-mail: http://www.justice.gc.ca/eng/dept-min/pub/dr-rd/index.html#top

Saskatchewan
Public Legal Education Association of
Saskatchewan
115-701 Cynthia Street, Saskatoon, Saskatchewan S7L
6B7
Phone: (306) 653-1868
Fax: (306) 653-1869
e-mail: http://www.justice.gc.ca/eng/dept-min/pub/dr-rd/index.html#top

Information for Saskatchewan can also be obtained at the following
address:
Mediation Services Branch
Saskatchewan Justice
3085 Albert
St., Room 323
Regina, Saskatchewan
S4P 3V7
Phone: (306)
787-5747
Fax: (306) 787-0088
e-mail: http://www.justice.gc.ca/eng/dept-min/pub/dr-rd/index.html#top

Alberta
Public Legal Education Network of Alberta
c/o
Legal Resource Centre
University of Alberta Extension
10049-81 Avenue,
Edmonton, Alberta T6E 1W7
Phone: (403) 492-5732
Fax: (402)
265-2458
e-mail: http://www.justice.gc.ca/eng/dept-min/pub/dr-rd/index.html#top

British Columbia
The People's Law School
150-900 Howe
Street, Vancouver, British Columbia V6Z 2M4
Phone: (604) 331-5400
Fax:
(604) 331-5401
e-mail: http://www.justice.gc.ca/eng/dept-min/pub/dr-rd/index.html#top

Northwest Territories
Legal Services Board
P.O. Box
1320, Yellowknife, Northwest Territories X1A 2L9
Phone: (403)
873-7450
Fax: (403) 873-5320

Yukon
Yukon Public Legal Education Association
c/o
Yukon College
P.O. Box 2799, Whitehorse, Yukon Y1A 5K4
Phone: (403)
667-4305
Fax: (403) 668-5541

Date
Modified: 2008-12-12

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Important Notices