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VERY ALTERNATIVE DISPUTE RESOLUTION
(VADR)

Mediation vs Arbitration

In the process of resolving conflict, mediation and arbitration are two of the most common practices. The difference between the two terms is not well known to many people. Usually, only a small percentage of legal cases make it to court. The majority of issues are settled through arbitration and mediation. The goal of an arbitrator or mediator is usually the same: To help two or more parties reach an agreement. Each practice, however, is unique in many ways.

MEDIATION - WHAT IS IT?
In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR (Alternative Dispute Resolution) is synonymous with what is generally referred to as mediation in other countries.

​Mediation is a voluntary process designed to reach a mutually beneficial agreement. In order to determine a solution that satisfies all parties involved, mediators should expect to argue their viewpoints, provide evidence, and be willing to give up specific demands.   A mediator  is a neutral third party who assists two other parties in discussing and attempting to resolve a legal dispute.

​In contrast to arbitrators and judges, mediators do not have the authority to make a final decision. However, they possess the conflict resolution skills and legal knowledge necessary to facilitate productive discussions. Among the benefits of mediation for legal issues are:
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                           The mediation process is collaborative;
                         The fees are reasonable; and
                         The process can be less intimidating than a trial or arbitration.

ARBITRATION - WHAT IS IT?
Arbitration refers to the process of granting the right to make a final decision on a legal dispute to a neutral party, known as an arbitrator. Arbitrations are similar to court hearings, but they are generally shorter, more private, and less formal. Arbitrators listen to both parties' arguments, examine the evidence, and then make a decision.

Arbitrators' decisions may be binding or non-binding, depending on the nature of the dispute or lawsuit. Binding arbitration verdicts are enforced by the court, whereas non-binding arbitration verdicts must be accepted by all parties to be sustained. Additionally, an arbitrator may or may not provide reasoning for their decision.
                                  Arbitration has some benefits for a legal dispute, including:
                            Streamlining the process
                            A final decision will be made (one way or another)

Modern Litigation and Mediation: Successes and Failures
What are the benefits of mediation and arbitration, and how do they fit into the process?
Mediation and arbitration are used to settle disputes in part because the justice system is complex. 
A judge may order mediation or arbitration when a legal matter reaches a court of law, but these practices are typically voluntary. Mediation and arbitration proceedings are faster, cheaper, and more private than public trials. It is common to use non-trial hearings to resolve specific legal issues, such as:

Disagreements between neighbours, family members, friends and roommates;                                    Workplace issues in non-profit organisations and among volunteers;

                          Community issues; Minor commercial disputes (e.g., with a local store);
                        Family issues of a non-legal nature, such as difficult decisions related to                                            housing for ageing parents or for couples who are separated, choosing the                                  school their child.
                           Mediation in divorce
                        Mediation in real estate
                        Workplace lawsuits (mainly commercial and family disputes)
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In the 1980's and 1990's Canada saw the beginning of a "cultural shift" in their experience with ADR practices. During this time, the need was recognised for an alternative to the more adversarial approach to dispute settlement that is typical in traditional court proceedings. This growth continued over the coming decades, with ADR now being widely recognised as a legitimate and effective approach to dispute resolution.

In 2014, the Supreme Court of Canada stated in Hryniak v Mauldin that "meaningful access to justice is now the greatest challenge to the rule of law in Canada today… [The] balance between procedure and access struck by our justice system must reflect modern reality and recognise that new models of adjudication can be fair and just."

However, in the decades leading up to this declaration there had already been a number of experiments in ADR practices across the provinces. One of the first and most notable ADR initiatives in Canada began on 4 January 1999, with the creation of the Ontario Mandatory Mediation Program. This program included the implementation of Rule 24.1, which established mandatory mediation for non-family civil case-managed actions. Beginning in a selection of courts across Ontario and Ottawa in 1999, the program would be expanded in 2002 to cover Windsor, Ontario's third-largest judicial area. Until this point, opposition to mandatory mediation in place of traditional litigation had been grounded in the idea that mediation practices are effective when disputing parties voluntarily embrace the process.

The effectiveness of Ontario's experiment concluded that overall mandatory mediation as a form of ADR was able to reduce both the cost and time delay of finding a dispute resolution, compared to a control group. In addition to this, 2/3's of the parties surveyed from this study outlined the benefits to mandatory mediation, these included:

(i) providing one or more parties with new RELEVANT information;
(ii) identifying matters important to one or more of the parties;
(iii) setting priorities among issues;
(iv) facilitating discussion of new settlement offers;
(v) achieving better awareness of the potential monetary savings from settling earlier in the                    litigation process;
​(vi) at least one of the parties gaining a better understanding of his or her own ADR in                               Administrative Litigation 157 case; and
​(vii) at least one of the parties gaining a better understanding of his or her opponent's case."

In 2015 Quebec implemented the New Code, which mandated that parties must at least consider mediation before moving to settle a dispute in court. The New Code also codified the role of the mediator in the courtroom, outlining that mediators must remain impartial and cannot give evidence on either party's behalf should the dispute progress to a judicial proceeding.

One of the main arguments for ADR practices in Canada cites the over clogged judicial system. This is one of the main arguments for ADR across many regions; however, Alberta, in particular, suffers from this issue. With a rising population, in 2018 Alberta had the highest ratio for the population to Superior Court Justices, 63,000:1. The national average on the other hand is nearly half that, with one Justice being counted for every 35,000 Canadians.
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Med-Arb: What Is It?
A successful verdict may require elements of both mediation and arbitration.
This is a modern practice that combines both of these legal practices. Mediation and arbitration begin with both parties trying to reach an agreement with the help of a mediator. In the event that the parties cannot agree, the mediator will act as an arbitrator (if qualified) and render a verdict.

MEDIATION OVER ARBITRATION
Mediation may be more appropriate in certain situations than arbitration. Mediation, for example, can be used if both parties believe they can reach an agreement on their own terms. Often, this is the first step in resolving a legal matter, and it may or may not escalate to arbitration or a court hearing.
Mediators can also be used if one or more parties cannot afford to hire a lawyer or arbitrator. Mediation is usually the next logical step if the legal matter is small or if the dispute is in its early stages. 

ARBITRATION OVER MEDIATION
Arbitration is a more formal dispute resolution process and is preferred over mediation when an issue has escalated to a more serious level. Arbitration should be used when both parties are unable to reach an agreement, especially if time is of the essence. Additionally, arbitration may be a better option than mediation if significant amounts of money are involved or serious accusations are made. 
Source:  https://en.wikipedia.org/wiki/Alternative_dispute_resolution#Canada

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