Resolving disputes without going to court

Courts aren’t always the best place to resolve a dispute. They are often slow and expensive. Going to court can end up costing more than the dispute is worth. Court may not work if you need a quick solution. And court proceedings are open to the public, and you may prefer to keep the details of your dispute private.

Alternative dispute resolution, or ADR, is an umbrella term to describe alternatives to going to court. The four most common alternative ways to resolve legal disputes are:

• negotiation,

• mediation,

• collaborative practice, and

• arbitration.

These options often work best at an early stage of a dispute. The more time that goes by, the more likely it is that you and the other person will each believe you’re right and the other person is wrong. Once you become stuck or entrenched in your positions, and ignore the common interests you may have, it’s harder to reach a solution you can both accept.

Negotiation involves the people in a conflict discussing issues to try to reach an agreement. You work out a solution together that fits both of your interests. Negotiation happens every day. It’s probably something you often do, perhaps without even realizing it.

A lawyer can help you negotiate with the other party in a dispute, or you could negotiate on your own. If you negotiate on your own, without a lawyer, you should sign an agreement with the other party saying your negotiations are without prejudice. This means neither of you can use your discussions against the other if one of you decides to go to court.

In mediation, the people in a conflict meet with a neutral person (a mediator), who helps them find a solution they agree on.

The mediator doesn’t work for either party, or favour one party over the other. The mediator manages the process and organizes your discussions, remaining a neutral facilitator throughout the process. They help clear up misunderstandings and reduce tension, so you and the other party feel comfortable sorting out your problems together. While the mediator helps the two of you to come to an agreement, they don’t decide for you, or force you to accept a solution.

Mediation works well for most disputes — especially when the facts are clear, the people are in an ongoing relationship, and they want to protect their privacy. For example, mediation can be ideal for resolving family disputes. That is so particularly if there are children, where the parties need to continue working together as parents.

Mediation works only if both people are willing to resolve their dispute. It doesn’t work if one person isn’t interested in a solution that satisfies both people. In that case, court may be the only solution.

For more, see our information on mediation.

Collaborative practice is a kind of negotiation where the parties seek an agreement that suits everyone, agree to disclose all relevant information, and commit to keeping their dispute out of the courts.

Collaborative practice is most widely used in family disputes. Each party has their own lawyer, who agrees to only act for them in the collaborative process (and not if the matter ends up in court). The lawyers work to minimize conflict and reach an agreement. Communications are usually open and transparent.

Collaborative negotiation is an effective process for moving past conflict to resolution — even if you’ve tried other ways to come to an agreement. It also gives you emotional support and legal guidance. And it’s more private than going to court (court documents are public, but your collaborative agreement is not).

For more on this approach, see our information on collaborative practice.

With arbitration, the people in a conflict hire a neutral person (an arbitrator) to make decisions about their dispute they will be bound by. The arbitrator listens to the evidence each party presents and decides the issues.

Arbitration is less formal and more flexible than court. You and the other party agree in advance on the rules for the arbitration process. You can both agree on a process that will allow the arbitrator to reach a decision on a limited budget.

Arbitration works well for commercial and business disputes. An arbitrator is often experienced with the type of dispute you have. They may be an expert on the subject.

Before arbitration begins, you and the other person must decide if you can still go to court if you don’t like the arbitrator’s decision. This may depend on the law that applies to your problem. Usually, you cannot go to court later if you’re unhappy with the arbitration result.

Yes, absolutely. Even if you go to court, you can still try alternative dispute resolution in most cases. After a lawsuit has started, parties often try to negotiate settlements so they don’t have to go to trial. Or (if both parties agree) you could try mediation or arbitration before going further with a lawsuit.

If the issues are very complex, the dispute might benefit from the processes available in a lawsuit to, at an early stage, examine the documents and question the people involved.

Professionals who provide alternative dispute resolution include lawyers, social workers, and psychologists. When looking for a mediator or arbitrator, it’s important to work with a qualified and skilled professional experienced in the type of dispute resolution process you want to use.

The ADR Institute of BC can direct you to a chartered mediator or arbitrator who is a member of the ADR Institute of Canada. Visit adrbc.com or call 604-736-6614 in Vancouver and 1-877-332-2264 elsewhere in BC.

Call the Lawyer Referral Service, operated by Access Pro Bono, for a lawyer experienced in alternative dispute resolution. Call 604-687-3221 in the Lower Mainland or 1-800-663-1919 elsewhere in BC, or visit accessprobono.ca.

Organizations related to a specific business, product or service may also offer alternative dispute resolution services. For example, the Canadian Motor Vehicle Arbitration Plan has an arbitration program for disputes between consumers and vehicle manufacturers about alleged manufacturing defects or new vehicle warranties. If you have a complaint involving a business, the Better Business Bureau offers both mediation and arbitration.

Call the Lawyer Referral Service for a lawyer experienced in collaborative practice. Call 604-687-3221 in the Lower Mainland or 1-800-663-1919 elsewhere in BC, or visit accessprobono.ca.

Visit the BC Collaborative Roster Society’s website at bccollaborativerostersociety.com and search for collaborative lawyers nearby.

Visit Collaborative Divorce Vancouver’s website at collaborativedivorcebc.org for the name of a member lawyer.

The Collaborative Association’s website at nocourt.net features a list of participating professionals.

In Victoria, contact the Collaborative Family Separation Professionals for the name of a member lawyer. Visit collaborativefamilylawgroup.com.

For more options to find a collaborative practitioner, see our information on mediation and collaborative practice.