Alternative Dispute Resolution in Canada

                                                                                         

Alternative Dispute Resolution is one of the best solutions in modern law. While the courts today are overcrowded and in many provinces the amount of cases like personal injuries just can’t be handled fast enough – alternative solution (through any other resolution than litigation) usually is the best solution. It is most often practiced in such areas of law as: commercial, construction, elections, employment, federal practice, insurance, international, labor and securities. In some areas 90% of the cases are solved throughout alternative resolutions. Alternative Dispute Resolution has lot of advantages compared to litigation, it is usually cheaper and more expeditious. Also it can be focused only on the solution of the problem and not on court procedures, so is it more effective for both sides. Usually the alternative resolution is proposed after the initial hearings stage. One of the biggest advantages of the Alternative Dispute Resolution is flexibility. Basically any conflict resolution within legal rules can be considered and alternative solution. Still there are five main types of Alternative Dispute Resolution: negotiation, mediation, collaborative law, hearing and arbitration.

Negotiation is a voluntary procedure with no third party that facilitates the resolution process or imposes a resolution. This type of Alternative Dispute Resolution is the easiest one for both of the sides, because everything can be solved between the parties with no additional people, still this solution is impossible in a large number of cases because the sides are not ready for negotiation (are having emotional problems during a divorce for example).

Mediation is procedure where a third party (a mediator) is facilitating the resolution process. While this party even the right to suggest a resolution, but does not impose a resolution on the parties.

Collaborative Law (collaborative divorce) is not quite an alternative resolution but rather a litigation variant, still it allows to solve the dispute without the active participation of the sides. In this type of resolution, each party has an attorney, which facilitates the resolution process within specifically contracted terms and mutually-agreed experts. No one imposes a resolution on the parties, however, the process is a formalized process that is part of the litigation and court system.

Hearing is a procedure that is less formal that trial. Mostly hearings are public with definite issues of fact or law to be tried, in which witnesses are heard and evidence is presented.

Arbitration is a procedure where participation is typically voluntary, and a third party (acting like a private judge) is present. The third party imposes a resolution during the process of arbitration. Mostly such type of resolutions occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. If such agreement was made it is usually called 'Scott Avery Clause'. During the recent years the enforceability of arbitration clauses (in consumer agreements mostly) has drawn scrutiny from courts. Of course there is always a possibility to appeal arbitration outcomes to courts, but appeals will face an exacting standard of review.

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