Effective preparation in ADR
A dministrative law hearings can be as complex and costly as traditional court proceedings, making alternative dispute resolution an attractive option to resolve differences. Many boards and tribunals offer alternatives to having a formal hearing before an adjudicator, usually in the form of a mediation. Parties are able to present their cases efficiently because the mediator has specialized knowledge of the subject area. This can make the process preferable to a private mediator who may lack the expertise needed to arrive at creative solutions.
The effectiveness of mediation depends on the parties to the dispute. Alternative dispute resolution is only as effective as participants make it. Lawyers are in a unique position to assist their clients in this regard. The following three approaches can help make alternative dispute resolution mechanisms effective.
The first approach is to narrow the dispute to its essential core. A case may have many different components, but often there are one or two issues that truly define the dispute. Advocates can sometimes obscure this by devoting time and energy to alternative arguments or setting out the history of a dispute in unnecessary detail. While a client may be momentarily satisfied by the airing of old grievances, it is counter-productive when the goal is to achieve a negotiated resolution. These issues may be of little practical consequence, but will result in hostility from the other side and wasted effort to resolve irrelevant differences. By focusing on the essence of the dispute, parties will be able to work toward solving the important problem, rather than getting sidetracked. This helps save time and money as mediations become more efficient.
The second approach is to prepare clients to compromise. It is easy for clients to be uncompromising in advance of a hearing; however, effective mediators will challenge parties when they become positional. Clients should be prepared for this reality by thinking about what they want to achieve at mediation and what they are willing to compromise on. These discussions sometimes require input from different people in an organization or further investigation of facts. If possible, draft a settlement proposal and present it early in the day. This can save time and focus attention on practical outcomes. Doing this work in advance avoids unnecessary delay at mediation and keeps the momentum toward settlement. It also reduces the chance of buyer’s remorse after an agreement has been signed because the client has more fully considered the implications of an agreement.
The third approach is to tailor the dispute resolution process to the nature of the case. Alternative dispute resolution does not need to be one-size-fits-all. Formal exchange of openings and an in-depth discussion of the case may be unnecessary. Parties can agree to use the skills and knowledge of the mediator to resolve a narrow set of pre-defined issues. Perhaps negotiations brought the parties close to a deal but one issue defies resolution. The parties may ask the mediator for a without prejudice recommendation. A well-respected mediator’s opinion can carry significant weight and help the parties consider the risks of proceeding to a hearing. Flexible approaches can yield surprising results.
All three approaches require preparation in advance of mediation. Even the best mediator will have difficulty finding a solution if parties have not thoughtfully considered their positions. This can be achieved by having clients answer directed questions. What outcome are you trying to achieve? What are you willing to compromise on? What are you not? If this matter goes to hearing, what are the broader implications of a win or a loss? Alternative dispute resolution functions best when parties come to the table with a realistic view of their priorities and a willingness to find solutions that work for both sides.
Paul Todd is Senior Legal Counsel at the Health Employers’ Association of BC.