Mediation and Arbitration Lawyer in Toronto, Canada

Disputes among businesses - whether competitors or contractually joined as partners - are certainly more common than you think. It’s also not uncommon that these disputes eventually end up in court, solving such issues one way or the other.

Litigation, of course, is not only costly but also intensely time-consuming. Those days and maybe weeks you spend in court – or preparation for court -- can take you away from overseeing and managing your business.

Court battles also have a way of becoming public. Information about your company that you may not want others to know can be aired and become public knowledge available to customers, creditors, partners, and competitors.

Mediation and arbitration are alternatives to litigation, and both have the benefit of being conducted privately. No court record will ensue, and no one will be present with what’s going on except those actively involved.

If you and your business are involved in a dispute in Toronto, Ontario, or nearby in Hamilton, London, or Ottawa, and you want to pursue alternative dispute resolution instead of litigation, contact Matthew R Harris Law P.C.

Lawyer Matthew Harris has experience and knowledge in mediation and arbitration. He can advise and guide you to resolve your dispute outside the courtroom. He can also pursue litigation if necessary or represent you if a lawsuit finds you.

What Is Mediation?

Mediation is one of the two prongs of alternative dispute resolution (ADR) along with arbitration. The Canadian Bar Association defines mediation as “the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no decision-making power, to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.”

The characteristics of mediation include:

• Voluntary: Both parties must agree to mediation.

• Non-Binding: The decision of the mediator is not binding.

• Impartial: The mediator is an impartial third party who assists in discussions and negotiations to conclude a mutually agreeable resolution. Both sides can be assisted before or during mediation meetings by outside counsel.

• Informal: Unlike arbitration or litigation, there are no formal rules for mediation. What transpires is subject to approval by both parties.

• Confidential: The parties should agree to a confidential clause before proceeding, but even if they don’t, Canada’s Access to Information Act and Privacy Act may apply.

In short, the mediator cannot dictate a solution. The parties to the mediation must themselves accept a resolution offered by the mediator, rely on the mediator’s input, arrive at a resolution, or choose to move on to arbitration or litigation.

What Is Arbitration?

Unlike mediation, federal and provincial laws govern the arbitration, and its procedures resemble litigation but in a more relaxed fashion. At the federal level, Commercial Arbitration Act (CAA) governs commercial arbitration. Ontario relies on its own provincial Arbitration Act for domestic arbitrations and the International Commercial Arbitration Act for arbitration issues extending beyond Canada’s borders.

Arbitration can be agreed upon before any dispute arises with an agreement between the parties to use arbitration rather than litigation to resolve disagreements. Arbitration can also be chosen after a dispute arises when both parties agree to the arbitration process.

An arbitration proceeding is similar to a court case, but in court, you cannot choose the judge. In arbitration, both parties can agree on the choice of an arbitrator. As in court, however, the result of an arbitration proceeding is binding. The parties agree when accepting arbitration that the arbitrator’s decision will be final.

Like mediation, arbitration is voluntary, and it is also somewhat informal in that the CAA allows the parties to determine their own evidentiary and procedural rules. As a trial, however, both sides will present their arguments before the arbitrator, with or without the assistance of legal counsel.

As in litigation, once a case has been presented by each side, the arbitrator will issue a decision. Article 31 of the CAA requires that an arbitral award is in writing and that reasons need to be provided unless the parties have agreed in advance that no reasons are required.

Again, like mediation, arbitration is completely confidential if both parties agree in advance. Otherwise, the same two federal information and privacy laws apply.

Which Route Is Best?

Mediation is the more informal of the two ADR options; however, the mediator cannot issue a binding solution. Arbitration relies on the same adversarial relationship as found in a courtroom battle - and the result is likewise binding - which may not please one or both parties.

The CAA, however, does allow “recourse to a court” under certain circumstances after an arbitrator’s ruling, generally when there has been a violation of one party’s rights or a decision that goes beyond the original arbitration agreement.