I have been practising law for over a quarter of a century and acting as a mediator and arbitrator for many years now. One constant is that lawyers complain about our civil litigation system being too slow, costly, inefficient, and unpredictable. Another constant is that we don’t do much about it, even though there are options available.
We have significant changes on the horizon for the Ontario civil litigation system. A recent article—Strategic Use of New Rules: Practical Tips for Litigators by Michael Puopolo and Kristen Shorer (Aird & Berlis LLP)—contained some excellent advice on how to approach those changes. I want to follow up on that by emphasizing that lawyers may be able to achieve some of the benefits of those changes now through Alternative Dispute Resolution (ADR), rather than waiting for new rules to mandate those changes.
As Mr. Puopolo and Ms. Shorer explain in their article, the forthcoming revisions to the Rules of Civil Procedure represent a "significant reimagining" of civil procedure in Ontario. The primary goal is efficiency, aiming for a resolution within two years. This is a significant improvement from six years, which is Ontario’s current average (see Strategic Use of New Rules: Practical Tips for Litigators ). However, a two-year timeline is still far from swift. The strategic use of ADR provides prompt, customized finality that the public court system, even with its planned reforms, cannot match.
Mediation: Don't Wait for the Mandate
Mediation is an extraordinarily effective tool for resolving disputes and allowing parties to save both time and money. The efficacy is clear: the vast majority of mediations end in a settlement. Choosing the right mediator is critical; you should ensure you choose someone with an appropriate background in the relevant area, and you should consider the personality and approach of the mediator as well. For example, a purely evaluative mediator may be appropriate in some cases, whereas an interest-based one will be more effective. I tend to use various approaches and adapt to the specific case, parties, and issues. Given that my practice is focused on employment law, I always work with mediators that have extensive experience in the area. I also choose mediators that will connect with my client and take an approach conducive to settling the particular issues in question. Some mediators tend to be more result-oriented, whereas others have higher emotional intelligence, which can be important where emotions are high.
The new Rules will include mandatory mediation, which is something that many of us have been advocating in favour of for years. Even with this, counsel should embrace mediation as early as possible; I am a strong proponent of pre-litigation mediation and early mediation (before discoveries).
Arbitration: Unlocking Speed and Tailor-Made Justice
Even when parties are set on a binding determination rather than settlement, arbitration offers key advantages over the public court system, particularly in speed, efficiency, and customization. Encouraging clients to agree to arbitrate a dispute is a strategic move toward a swift and conclusive resolution.
It is particularly odd that, in the labour and employment world, arbitration is the norm on the labour side but a rarity for employment lawyers. This is a missed opportunity.
Efficiency and Speed
The endless delays, inefficiencies, and unpredictability in court do no favours for you or your clients. Arbitration offers advantages in respect of:
- Setting the Pace and Efficiency: With arbitration, the parties set the pace. The arbitrator is answerable to them, ensuring they agree on a timeline. This avoids the inefficient use of court time, where a scheduled six-and-a-half-hour day may yield only a few hours of actual hearing time due to delays and breaks. The arbitrator works for the parties alone, focusing on the schedule and avoiding wasted time.
- Finality: Parties decide on appeal rights at the outset. In most cases, the arbitrator's decision is final, providing crucial clarity and closure.
Customization and Privacy
Arbitration allows parties to customize the procedure and evidence involved, making it a far more effective option than traditional litigation.
- Tailor-Made Justice: Unlike the one-size-fits-all court process, arbitration lets you customize. Parties can skip unnecessary steps in a straightforward case or opt for full hearings when dealing with complex issues. The reliance-based disclosure model and limited discovery rights of the proposed new Rules may be familiar to those experienced with commercial arbitration.
- Choosing Expertise: Parties can handpick their arbitrator, selecting a decision-maker familiar with the specific area of law, reducing the inherent unpredictability of the court process.
- Confidentiality: Confidentiality is key, especially for defendants seeking to avoid airing sensitive information in public. Avoiding an adverse public decision also prevents the creation of troublesome precedents (e.g., rulings on post-termination compensation) that could open the floodgates for additional claims against a company.
Med-Arb: The Hybrid Solution for Guaranteed Resolution
When seeking both the flexibility of mediation and the certainty of a binding decision, counsel should consider the hybrid process of Med-Arb.
Med-Arb provides the "best of both worlds." If a mediation fails to result in a settlement, the process efficiently moves directly to arbitration. This structure ensures that if settlement is not reached, the neutral mediator transitions to arbitrator and follows the agreed-upon process in order to reach a binding decision. Either way—through settlement or through binding determination—there will be a prompt resolution.
In the simplest scenarios, Med-Arb can be structured so that if mediation falls short, the parties dive into final offer selection ("baseball arbitration") right at the day's end, wrapping up the entire matter in a single day.
Conclusion: Consider the Alternatives
Even as Ontario updates the Rules of Civil Procedure, the benefits of ADR remain highly compelling. I encourage all counsel to not dismiss arbitration or mediation out of hand. Arbitration, mediation, and Med-Arb provide solutions that can greatly benefit your clients. We owe it to them to consider these alternatives in all disputes, as early in the process as is feasible.
While the new Rules aim for a two-year resolution, proactive and customized ADR offers the ability to bring about finality efficiently, both in terms of time and money.
If the new litigation process is a long, scheduled ferry, mandated to arrive at the station two years from now, ADR is the customized speedboat, allowing parties to plot their own course, ensure confidentiality, and reach resolution on their own timetable.
I encourage counsel to contact me if you have an active matter and want to discuss the ADR options available: https://www.rudnerlaw.ca/alternative-dispute-resolution; 416-864-8501; stuart@rudnerlaw.ca.
About the Author
Stuart Rudner is a lawyer who has been practising in the field of employment law for 25 years. He also has a growing mediation and arbitration practice focused on employment law disputes.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.