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Mediation / Arbitration – Fit the Forum to the Fuss

We are happy to announce that Doug Moe Q.C. and Brad Mustard have been asked to present at the Legal Education Society of Alberta’s 52nd Annual Family Law Refresher Course. It is always an honour to present alongside our family law colleagues! The following is a highly abridged version of Brad’s presentation on the mediation/arbitration process.

Mediation/arbitration is an accepted and effective dispute resolution process. The process allows a great deal of flexibility and creativity in terms of choice. The most common basic format is mediation followed by arbitration if the parties are not successful in reaching settlement. The advantage of this process is that the parties have the opportunity to find their own solution but it ensures the dispute will be resolved by moving onto arbitration if necessary.

Within the basic mediation/arbitration format there are many possible variations. Parties can choose to have the same person act as mediator and as arbitrator. They can choose to have to different individuals take on that role. The parties can choose final offer arbitration where the arbitrator can decides between two options, parties can opt to have arbitrator conduct a full hearing with evidence presented in person by witnesses (viva voce) or evidence can be submitted through affidavit.

Each of these processes have their own advantages and draw backs, so how can you choose the best method for you?

As lawyers who are experienced with all forms of the mediation/arbitration we will work with you to design a process that works.  We can guide you through the process choices. In doing so, you will be able to “fit the forum to the fuss” and achieve a resolution that balances your interest in the process with your legal and financial interests.

Lawyers will weigh the pros and the cons of the process to ensure they find the right fit. Some of the considerations are as follows:

-Efficiency and resource savings: how can we minimize the time and cost for the parties?

-Evidential requirements: informal process with streamlined evidence or formal examinations and document discovery?

-Witnesses: oral evidence or affidavits? Time limits on cross examination? Is evidence needed in front of the Arbitrator or will transcripts suffice?

-Experts: can the parties retain a joint expert? Is there an option for a truncated opinion or is full, formal reporting and evidence required?

Fitting the forum to the fuss becomes a critical skill for lawyers and arbitrators on behalf of their clients.   It requires both lawyers and mediators/arbitrators to negotiate around the details of the process and how they will resolve the dispute. A mediation/arbitration process can only be determined by consent, so parties are provided with an opportunity to have their own input and can elect alternative processes – even if that alternative is to let the arbitrator decide.  The advantage of this approach is that just as parties to the dispute are more likely to comply with a resolution reached through mediation because they were integral to the process, so too are parties more likely to be satisfied with a conflict management system that they have helped design.