our logo

Home Page

Why Choose ADR?

Services We Offer

Our ADR Practitioners

Contact Us

Career Opportunities

John P. Sanderson, Q.C.
Heather L. Laing

Services We Offer

Note: This is only a partial list of the services we offer.

Scroll down the page or click on the link to jump to the description.

Mediation

The first, and probably the most frequently used process, is mediation. Mediation has been simply defined as a process through which difficult conversations can occur with the help of a neutral third party to explore mutually acceptable solutions to problems. Quality mediations are said to be interests-based, rather than rights-based. While in the judicial or administrative law system resort is taken to the applicable legal rules in resolving disputes, in mediation the underlying needs, concerns and goals of the parties (their interests) become the real basis for reaching agreement. Thus, in mediations parties may decide to settle a case on a footing that makes sense to the relationship between them and they can tailor their solution to meet their needs. They are not required to do what a court or tribunal is limited to do.

  • The mediator is trained to help the parties explore their underlying needs and interests.
  • The mediator employs a combination of analytical and communication skills to assist the parties to focus on the real issues between them.
  • The mediator works to bridge their conflict in order to derive a result that satisfies as many of their needs as possible.
  • The mediator is neither advisor nor judge.
  • The mediator may be requested to provide an opinion on the merits of a case, but his/her primary role is to help the parties find a variety of optional solutions that aim to meet diverging or mutual needs.
  • The mediator becomes an agent of reality, a problem identifier or simply a support person to ensure the parties make decisions that meet self-described needs and goals.
  • The mediator facilitates the discussions and negotiations, frames constructive suggestions for resolution and possible ways to overcome barriers, that can be considered by the parties.
  • In the best of all possible worlds the mediator provides each party the opportunity to find the strength to seek wise solutions to disputes and better ways to manage conflict.

Mediation services may be relevant to disputing parties at any time - from the moment they perceive a conflict to exist and throughout the course of any dispute that may ensue. Even if the parties are unable to resolve fully their dispute through mediation they are often able to narrow the issues that require adjudication. In most cases this would be reason enough to endeavor to mediate a solution.

[ top ]


Arbitration

In arbitration, the facts of the dispute are presented to an independent neutral arbitrator, or panel or arbitrators, chosen by the parties, who issue(s) a binding decision with respect to the matter in dispute. The representatives of the parties, who are usually lawyers, present evidence through witnesses at a hearing, conducted by the arbitrator. Evidence, through witnesses or in documentary form, is produced and submissions are made directing the arbitrator toward the appropriate legal principles to be followed. The rules by which the hearing is conducted are established by the parties in accordance with the arbitration regime that applies and the requirements of the particular case. Following the hearing, the arbitrator delivers an award which contains the arbitrator's decision, a summary of the relevant facts and the reasons for the conclusion that has been reached. Depending on the circumstances the parties may have a limited right to appeal this award to the courts. If a losing party is unwilling to comply with the arbitrator's award there are enforcement proceedings under the various arbitration acts.

The following features should be noted:

  • Generally speaking, it takes less time to get to arbitration than to court, it is cheaper and it will achieve a binding result with less procedural wrangling.
  • The parties get to chose their arbitrator, which means they can seek someone with the qualifications, knowledge and expertise to undertake the decision-making function for them.
  • Arbitration proceedings are considered to be private and confidential as between the parties and the arbitrator. There is no public record of the proceedings and thus the award remains private.
  • Arbitration proceedings are generally more efficient than litigation. Depending on the jurisdiction and the rules that apply to the proceedings, arbitrators have authority to issue orders to produce documents, subpoena witnesses and order disclosure of other material information. These powers are regularly exercised. In contrast, while arbitrators may have authority to order discovery, they often decline to do so because of the additional time and expense that would be involved. Most procedural matters are dealt with in pre-hearing discussions between the arbitrator and the representatives of the parties.
  • Arbitration is similar to litigation in that it is a win-lose result, dependant on who is at fault. If the dispute is bitter, the arbitration process may be abused by an aggressive disputant in the same way a court proceeding may be rendered complex and fractious.
  • Arbitration is particularly suitable where the dispute involves a legal principle or issue or the parties need a clear-cut decision and a sense of finality.

[ top ]


Mediation-arbitration

Mediation-arbitration dispute resolution combines the mediation process with the prospect of an arbitration if the differences are not resolved during the mediation. The principle purpose of the process is to mediate the dispute and reach a mutually acceptable solution. However, if that does not occur, the parties progress to the arbitration phase which will result in an award that is binding on all parties. On occasion, the parties will make the second phase of the process, the arbitration stage, non-binding. If that is done, the latter part of the process is more in the nature of a fact-finding exercise than an arbitration.

Mediation-arbitration is best suited to a situation where the parties prefer to try to settle the matter in an efficient and amicable manner, but a guaranteed and quick solution is required. The person who conducts the mediation phase may be the same person who becomes the arbitrator if mediation does not succeed.

There is some disagreement among the practitioners regarding the wisdom of this arrangement. On the one hand it is obviously more expeditious to use the same person who will have become familiar with the factual background and the circumstances surrounding the issue(s). On the other hand, that person may have been affected in judging the merits of the matter by receiving information in conducting the mediation that is not proper evidence. While the skills required to be a mediator are different from those of an arbitrator, there is no principled reason why a person cannot be both, provided that person has the trust and confidence of the parties and the experience to effectively operate in both dispute resolution realms.

[ top ]


Fact-finding

Fact-finding is a form of dispute resolution in which an investigation is conducted by an appointed neutral person or panel. The fact-finder may be an expert with respect to technical matters involved in the dispute. The theory of fact-finding is to attempt to remove a common obstacle to the prompt resolution of many disputes, namely confusion and uncertainty regarding the essential facts. The parties supply the fact-finder with information regarding the nature and origins of the dispute, the merits of the positions that have been taken and the consequences that have unfolded. The fact-finder provides an analysis of that information, sometimes with non-binding recommendations.

  • A fact-finder must have keen investigative skills and the technical background to evaluate the facts.
  • Frequently the fact-finder must conduct interviews to obtain factual information, which in turn means that he/she must be able to engender respect and confidence in his neutrality.
  • The use of an expert fact-finder may be considered where the separate parties intend to present their own expert evidence in court and the examination of those experts is likely be lengthy and inconclusive. The technique is most useful in situations where the facts are vague, confused or disputed and thus there is an impasse to achieving settlement of a particular dispute.
  • Fact-finding can be particularly useful in helping to diffuse a dispute through a process of investigation at the earliest stages when the dispute has arisen. Presumably, the matter is still within the control of the parties themselves and a fact-finder may be able to reduce the emotional posturing and avoid litigation.
  • The technique also works well where there has been a certain amount of negotiating or initial preparation leading to litigation. The disputants should be far enough along in the process to allow the parties to have formed opinions regarding their own case and that of the other side, but not to the point of having their positions hardened into irreconcilable postures. As a general rule, fact-finding will not work well unless it is conducted before discovery and perhaps as an alternative to it.

[ top ]

Suite 803
750 West Pender Street
Vancouver, BC
V6C 2T8
Tel: (604) 685-8329
Fax: (604) 685-9254
jsanderson@sanlaing.ca