When we think of legal battles, the typical image that comes to mind is of sparring attorneys in a battle of words before a judge. However, this conventional view of dispute resolution, with two parties fighting it out in court, is quickly falling out of favour as the default procedure for civil disputes.
Today, all across Canada, law makers and practitioners in the legal field are promoting a concept referred to as Alternative Dispute Resolution (ADR), which offers alternative and less contentious means of resolving conflicts. Its 3 principal forms, mediation, negotiation, and arbitration, have become more widespread, popular, and in some cases, even required before other avenues are pursued.
In B.C., for example, attempting to find a solution through ADR, also known as participatory justice, is now obligatory before proceeding to court. And in Quebec’s refresh of the province’s Civil Code, participatory justice has a privileged position.
The 3 Forms of Participatory Justice Explained
Participatory justice generally comprises 3 alternative means of dispute resolution, each with its own unique characteristics and advantages. When looking for a solution to a conflict, those involved can weigh the various benefits and choose the option they feel is most suited to them.
Mediation is a form of dispute resolution facilitated by a neutral third party. Parties in a dispute who opt for mediation select their own mediator who then works to help them find a mutually satisfying resolution without imposing solutions or making a final decision. Solutions brought about the mediation are non-binding, which means that following the procedures the parties are not obligated to carry out the agreed-upon solution.
If mediation is not successful the parties can move on to the next step, which often involves negotiation.
Negotiation is a less formal, more flexible option for resolving disputes. There are no predetermined legally prescribed rules for negotiations. The parties involved set whatever rules they choose and determine the parameters, timing, and location of the negotiations.
When opting for negotiation, parties may participate directly, meeting with one another to come to a mutually beneficial arrangement, or they may choose to be represented by someone else, such as a lawyer, advocate or other professional with expertise in negotiation.
When a solution is reached via negotiation, the parties are free to accept or reject it and also have the freedom to withdraw at any point during the process. When used to resolve civil disputes, negotiations also tend to be fully confidential.
Under arbitration, a third party listens to negotiations, reviews the evidence in the case, and makes a decision. Decisions arrived at through arbitration are typically final and binding. They are thus enforceable in the courts and cannot be appealed. The benefit here is that the dispute cannot be drawn out or dragged on for years.
Additionally, while court cases are usually public, arbitral proceedings and decisions are generally confidential, which can offer an added benefit for parties who’d like to keep their dispute close to home.
Arbitration can also be an option of choice when disputes involve highly technical matters or subjects requiring industry expertise. In such situations, an arbitrator with the right training or expertise might be needed to fully understand the dispute and may be the best person equipped to find solutions.
Participatory Justice: 7 Benefits
The reasons for this new trend are many, and the list of benefits is long.
1. Greater Accessibility
ADR addresses a problem that had been on the radar of those in the legal field for some time: that of access to justice. By avoiding a court battle, those involved in a dispute can find a mutually beneficial solution while keeping costs down.
2. Empowered Participants
Instead of acting as a passive recipient of “justice”, participatory justice allows those in a dispute to choose among several possible means of resolving their conflict, selecting the one they feel is best suited to their needs, and allows them to be active participants in the steps toward resolution.
3. More Effective Problem Solving
Participatory justice encourages those in a dispute to find more effective means of solving problems through mutual cooperation, which can help mend relationships and keep conflicts from reaching extremes. Parties are encouraged to work together rather than end up as warring enemies before a judge where one must win and the other must lose.
4. Speedier Solutions
ADR enables those in a dispute to reach solutions more quickly than if they had relied on a traditional court battle. Instead of waiting for a court date, going through the court proceedings and subsequent appeals, which can sometimes drag on for years, the parties can meet in a timely fashion and begin working towards a resolution.
5. Reduce Backlog
By encouraging people to solve problems outside of court, emphasis on ADR can help diminish the backlog of cases waiting to go before a judge and overall reduce the financial burden of the justice system on taxpayers. In addition, by reducing the backlog of cases waiting to go before the court, cases that cannot be solved through ADR will be able to find a speedier resolution.
6. Choose Who’s Involved
When you go to court, you don’t get to choose the judge, but two parties who opt for ADR can choose their own mediator, negotiator, or arbitrator.
7. Choice of Language
If you go to court, the official language of the country or region of the court must be used. In cases of arbitration, mediation, and negotiation, the parties can choose the language of the proceedings.
So when facing a dispute, speak to your attorney about the ADR options available!