Alternative Dispute Resolution (ADR) is a method to resolve disputes without going to court. Many lawsuits end up being settled before going to court after the parties involved use some form of ADR. This can provide a faster, cheaper, less stressful, and more private resolution to many disputes.
ADR techniques can settle a wide range of disputes. Some common examples include:
- Business: breach of contract, partnerships;
- Property and land use: land transfers, boundaries, easements;
- Family: divorce, custody and visitation rights, support payments;
- Consumer: repairs, services, warranties;
- Collection and debt recovery;
- Human rights and discrimination claims;
- Employment disputes: contracts, terminations;
- Landlord and tenant: rent, repairs and leases; and
- Personal injury and property damage claims.
Alternative dispute resolution takes many different forms, although the most common are negotiation, arbitration, and mediation.
Negotiation is the simplest form of ADR. Basically, it is a discussion between the parties involved, with or without lawyers, aiming to find a common ground. Since there are no third parties like a judge or an arbitrator involved, this gives the two sides the most control over the proceedings and the resolution.
Mediation brings in a neutral, professional third party who listens to both sides of the dispute, tries to facilitate communication, and reach a compromise. They do not offer a legally binding solution. Both sides will agree on the choice of mediator and typically will share the cost.
Arbitration is similar to mediation except the neutral third party issues a binding decision. An arbitrator is an expert in the field relating to the dispute and both sides agree to honour their decision.
Companies exist that can provide mediators and arbitrators or help you find one with knowledge of your dispute.
After negotiation, mediation, and arbitration, there are other types of ADR entering wider use.
Restorative justice: An approach used when an actual crime is committed. Correctional Service Canada defines it as “a non-adversarial, non-retributive approach to justice that emphasizes healing in victims, meaningful accountability of offenders, and the involvement of citizens in creating healthier, safer communities.
Conflict management coaching: Meant for business and corporate settings, this method pairs a trained coach with a person to develop techniques to managing and resolving disputes.
Collaborative family law: Where spouses and their lawyers work together to resolve issues at play. It’s different from family courts where lawyers are just fighting for the rights of their client.
When should we go to the courts?
Alternative dispute resolution isn’t appropriate for all disagreements. Some situations call for a courtroom resolution.
- If violence or the threat of violence is involved.
- If the dispute will affect other people or groups who aren’t party to the process.
- When a public record is important. Unlike court decisions, ADR settlements are usually confidential.
Negotiation and mediation are often inappropriate in cases involving a major power imbalance between parties (such as employees and employers) or when one side is unwilling or unable to compromise. Arbitration could still be effective in these cases.
Judicial Council of Canada: About ADR
Restorative Justice Factsheet