What are mediation and arbitration?

Litigation is expensive, time-consuming, emotionally exhausting and people with legal disputes are increasingly seeking out other options. Mediation and arbitration are two alternative dispute resolution processes which allow parties to air their grievances, negotiate and, sometimes, resolve matters.

Mitchell Rose is a chartered mediator, lawyer, and the principal of Mitchell Rose Professional Corporation. He says, mediation, arbitration and the hybrid, mediation-arbtitration, have gained popularity in the last 30 years and are used in many different legal practice areas.

In a mediation, a third-party – often a lawyer – acts as a neutral facilitator to help participants to reach their own agreement. Mediators must first decide if the issue is appropriate for mediation. They must cultivate a safe environment, conducive to both parties feeling able to participate fully and freely. The mediator identifies the key issues in dispute and helps the parties understand the other side’s position. Without advocating for either side, they manage the process in a way in which each side feels their perspective was acknowledged and treated fairly. Sometimes parties will make a final settlement after mediation, other times, they will head to court.

Like a mediator, an arbitrator is a neutral third-party. Unlike a mediator, an arbitrator is a decision-maker. In arbitration, parties voluntarily submit their dispute to the arbitrator, who is empowered to impose a binding solution.

“An arbitrator is concerned with submissions of evidence and arguments by the parties and then rendering an impartial decision based on that evidence and the applicable law,” say Rose.

For those unable to choose between the two, there is also mediation-arbitration, or med-arb. In med-arb, the parties begin by mediating, then, if unable to reach a resolution, the mediator becomes an arbitrator. But during the mediation-phase of med-arb, the mediator is not arbitrating. And during the arbitration-phase, the arbitrator is not mediating. “It is the same third-party neutral, but they play a different role in each phase,” says Rose. “They are not mediating and arbitrating at the same time.”

Much of the time, parties to mediation and arbitration are represented by lawyers during the process.

ADR participants can use the processes to resolve their entire dispute, or a defined component of the larger issue, says Cathryn Paul, a family law lawyer and mediator with Oakville Mediation. For example, in a separation and divorce situation, the parties may want to decide a smaller but more pressing issue, such as their disagreement over which school the children should attend. The alternative to mediation and arbitration would be filing court documentation, waiting for a case conference, then waiting for a settlement conference, then a trial management conference, and then getting an answer at trial, says Paul. The entire school year may have ended by this point.

“It's a defined issue. They need to have a decision made. So, they want to have a fairly simplified process where they can both be heard and have an outcome.”

Aside from simplicity of process, confidentiality can also be a draw. Unlike the courts, arbitration is a confidential process. But if the arbitration award is appealed, the information would be disclosed in the court process, she says. Rose adds that in non-family-law arbitration, parties can agree that there should be no appeal of the arbitrator’s award.

Paul has been doing family-law ADR since 2004. Unique to family law is the careful screening process which ensures that parties can participate safely, effectively and free from fear and coercion. The Arbitration Act requires parties to be screened, and though there is no formal requirement in law for mediation, certified mediators are obligated to screen through their certifying body, says Paul. “It's about making sure that you identify any family violence, or power imbalances, and adjust appropriately for that,” she says.

Paul meets each person beforehand, typically for around an hour, to identify their goals and concerns, the family dynamics, access to finances and any other factors “weighing on them” as they begin the process. Following these meetings, she determines whether any adaptations to the process are necessary. Sometimes lawyers must attend. Sometimes it is necessary to have them in separate break-out rooms on Zoom, so they do not see each other on the screen. When meeting in-person, parties may have to arrive at different times, to prevent their crossing paths in the parking lot.

“It really depends on each family and what they need,” says Paul. But it's important to consider that, both in terms of safe participation and effective participation.”

There are not enough court resources for every family to iron-out the complex and detailed issues they bring to a legal dispute, says Paul. The court system is also stressful for families. And people are more likely to follow decisions they had a hand in making, she says.