The main methods of dispute resolution currently used in Canada are: Litigation; Arbitration; Mediation; Collaborative law; and Negotiation.
The methods are listed in descending order of structure and formality and do not include administrative tribunals. Tribunals exist for certain specific types of legal issues, such as the Immigration and Refugee Board of Canada or the Ontario Consent and Capacity Board, and have their own procedural rules which can vary between different tribunals.
Litigation is likely the method most familiar to people in part due to film, books, news and internet. However, it is also generally the most combative and expensive which makes it worth avoiding where possible.
Litigation involves bringing a contested issue before a judge in a court and there are formal procedural rules for how this is done. In many instances, the parties to the dispute will be represented by lawyers but not always. One exception to persons being able to represent themselves arises in the event of incapacity.
The result of the litigation process is either a binding order of the court stating the decision and the supporting reasons, or it can be a settlement between the parties which is incorporated into a court order. In the case of a judge deciding the outcome, there is the possibility of an appeal to a higher court but there are formal rules for bringing an appeal. Settlements can also be challenged but the challenging party would need to prove, amongst other things, that they did not enter into the settlement voluntarily.
Arbitration can be similar to litigation in terms of many of the formalities including rules for admitting evidence but not always. The particular matter under review and the specific arbitrator can dictate how the arbitration will be structured. However, instead of a judge deciding the case, it is an arbitrator.
One of the advantages of arbitration is that the parties can select the arbitrator whereas they cannot pick their judge. Many arbitrators specialize in certain types of law which can be very helpful in managing the matter and ensuring a result that properly reflects the applicable law.
Just like with litigation, arbitration orders are binding on the parties, and there are formal rules for appealing a decision.
Mediation, like arbitration, allows the parties to pick the decision maker. However, the decision is not binding on the parties. Therefore, this method is usually chosen where all the parties have a clear intention to resolve their conflict and are prepared to accept a bad outcome.
The mediation process for a particular matter is developed, to a degree, in consultation with the particular mediator and may be more or less formal. Generally, mediation is considered faster and cheaper than litigation or arbitration.
Collaborative law is really just a structured form of negotiation that developed in the family law area. The goal is to alleviate the brutality of the litigation process which was found by an increasing number of lawyers to be too complicated, expensive, time-consuming and emotionally devastating for the participants as well as people close to them.
One of the key elements of the collaborative process is the contractual agreement between the parties to participate in the process which they design themselves with the guidance of their lawyers. Unlike litigation and other dispute resolution methods, lawyers in the collaborative process act more like coaches. The focus is on the clients.
Part of the collaborative agreement is a provision stating that if the dispute cannot be resolved using the collaborative process, the original lawyers are prohibited from continuing to represent their clients for the purpose of litigation. New lawyers would have to be retained. This provides a significant motivation to find a resolution.
Another unique feature of the collaborative process is that the parties generally agree to use shared experts such as accountants and financial advisors. This can significantly reduce costs. They may even agree to use the same counsellors or coaches depending on the circumstances.
While collaborative law was first developed to address family law matters, the method can work for any type of legal dispute where all parties want to work together to find a resolution and are prepared to be bound by it in the end. Several jurisdictions in Ontario such as Waterloo Region, Hamilton and Toronto have been exploring the use of collaborative law for estate law and related matters due to the similarity with family law disputes. Business law is another ideal area where the collaborative process could work since parties will often want or need to get along afterwards.
For the most part, there is nothing preventing people who disagree about an issue from working things out themselves. Usually the barrier is their personalities and expectations about what constitutes a “fair” outcome. As a result, some involvement by neutral persons is often necessary.
Lawyers are trained to analyze legal issues and licenced to provide advice to the public about their rights, duties and options for resolving disputes as well as how to plan to avoid disputes in the first place. As a result, they can help parties negotiate a resolution to a specific problem and then outline options for moving forward where the parties wish to have an ongoing personal or business relationship. However, parties can negotiate on their own as well.
While the types of dispute resolution have been described as if they are mutually exclusive, that is not always the case. A dispute that starts as a litigation matter can still be settled through negotiation. Alternatively, the parties could agree to mediate or arbitrate a particular issue.
Conversely, there may be a specific issue that arises in any of arbitration, mediation, collaborative or even negotiation that needs a court order. As a result, there is no one size fits all process for every dispute.