Litigation can be a costly, time consuming and stressful process for the parties involved. When faced with the prospect of a lengthy trial in backlogged courts, with an uncertain outcome at trial, parties can look for alternative paths to resolving their disputes.
In estate disputes, parties may agree, and in some judicial regions of Ontario, are mandated, to participate in a mediation before their case can be argued or tried before a judge. Increasingly, parties are opting to proceed directly to a mediation or arbitration in an effort to resolve or adjudicate their estate dispute before litigation is commenced. Parties can also agree to a hybrid process called med-arb.
But what are the differences between mediation, arbitration, and med-arb?
Mediation
Mediation is a private and confidential process in which the parties agree to engage a neutral mediator to act as a settlement facilitator. In advance of the mediation, the parties file briefs with the mediator setting out their case. The parties and their lawyers then attend the mediation, albeit in separate rooms, while the mediator shuttles between the parties and assists them in negotiating a settlement.
The mediator is not a decision maker and cannot compel the parties to settle. While the mediator may express their view of the case and press the parties to compromise, the mediator does not choose a winner or a loser of the mediation. The decision to settle the dispute, entirely or in part, or to move ahead with the litigation, rests solely with the parties. If a settlement is not resolved at mediation, the matters discussed at mediation remain privileged and confidential, and cannot be disclosed either by the mediator, or the parties, to a judge at a later date.
Arbitration
Mediation is also a private and confidential form of alternative dispute resolution. The parties appoint a neutral arbitrator to consider the evidence and arguments presented by each side, who then renders a decision at the conclusion of the arbitration that is legally binding upon the parties.
Unlike a settlement reached at mediation that involves a compromise on both sides, the arbitrator will decide in favour of one party, and against the other. Unlike a decision rendered by the court, the parties can waive their right to an appeal.
Arbitration is widely used to litigate construction, employment and commercial cases. While arbitration is less common in estates matters, parties are increasingly considering private arbitration as an alternative to court.
While arbitration may provide a faster, more efficient and streamlined resolution to disputes as compared with the courts, there are added costs. The parties must pay the fees of the arbitrator and private arbitration facilities, in addition to paying their own legal fees, while court room facilities and the judge’s time are publicly funded.
Med-Arb
Med-Arb is a hybrid option that combines both mediation and arbitration. The parties first attend mediation to try to negotiate a settlement as described above. If a settlement is not reached, or if some issues are settled while some remain unresolved after the mediation, the parties then proceed to an arbitration at a later date or to have the mediator render a binding decision of the issue or issues at the mediation.
Med-Arb is a relatively new concept in estates disputes but is quickly attracting interest among lawyers and their clients.
Mediation, Arbitration and Med-Arb will the discussed at the upcoming Advocates’ Society program called: Mediation and Arbitration: Transforming Estate Lawyer, co-chaired by Justin de Vries.
