When deciding whether or not to attempt ADR, the lawyers involved need to consider the different personalities and players involved in the dispute. It is important to have a proper understanding of the parties and their history in order to ensure that a resolution can be reached, and that there is no risk of physical or emotional harm that could arise out of having the parties together in a room. For example, if you know that a client is stubborn, has a short temper, and feels negatively toward the other party, ADR may not be suitable.
Furthermore, if, as a lawyer, your client decides to attempt ADR, it is important to make it clear from the outset that ADR may not result in as high a monetary reward as litigation. Damages awarded through traditional litigation may prove to be greater, although the legal fees related to pursuing litigation may be disproportionate to the difference between the outcome of a negotiated settlement versus that decided at trial. It is important to manage your clients’ expectations and ensure that they understand that, while ADR has its potential benefits, if they are solely looking for a large monetary reward (although not guaranteed) and are unwilling to compromise, litigation may be a better path for them.
When dealing with someone who is willing to negotiate with the other party and craft a flexible and mutually agreeable settlement, mediation may be desirable. When assisting parties who may prove to be less compromising and may be require a decision to be imposed upon them by a third party, arbitration could be a better option. An ADR mechanism that is increasingly common is known as "med-arb," which is a combination of both mediation and arbitration, where the parties begin in mediation and, if no further negotiation appears to be worthwhile, the process can transition to arbitration.
In order to encourage the use of ADR, some jurisdictions have introduced the concept of mandatory mediation. Pursuant to Rule 24.1 of the Ontario Rules of Civil Procedure, mandatory mediation was introduced in Toronto, Ottawa and Essex County for certain types of actions, in order to reduce costs and delay in litigation, and to facilitate the early and fair resolution of disputes. Furthermore, Rule 75.1 of the Ontario Rules of Civil Procedure requires mandatory mediation for estates, trusts and substitute decision-making for proceedings in the same regions. The more recent introduction of Rule 75.2 of the Rules of Civil Procedure provides Ontario judges in jurisdictions where mediation is not already mandated to nevertheless order parties to estates or estate-related matters to attend mediation.
In conclusion, ADR provides a meaningful (and sometimes mandatory) opportunity for parties that wish to come to a cost-effective and timely resolution of all outstanding issues in a way that may not be possible through traditional litigation. The introduction of mandatory mediation in certain jurisdictions makes it clear that the legal profession and law-makers alike are seeking the benefits of ADR.
Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.
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