ALTERNATIVES TO GOING TO COURT

Litigation (starting a legal action and having your case heard in court) is only one way to resolve a dispute. You can resolve your dispute with or without the involvement of lawyers and without using the court system. These methods are called “alternative dispute resolution” (ADR).

Alternative dispute resolution

Alternative dispute resolution (ADR) refers to the various ways disputes are resolved outside the court system. While you may think that having a trial is the most common way to resolve legal problems, a very small percentage of cases actually go to trial. ADR allows people to settle their disputes in an informal, less expensive, and usually faster way than going to court.

The parties in a legal dispute may enter into negotiations, which simply means that they have discussions, with or without lawyers, about how to resolve the dispute. The negotiations often result in an agreement between the parties and the matter is concluded.

Mediation is another process to help people resolve legal disputes without going to court. A mediator is a professional, independent (neutral), third party who listens to the concerns of each party in the dispute and helps them reach a satisfactory conclusion. The mediator is not a judge and will not impose a decision on the parties in the dispute.

Arbitration is a more formal way to resolve a dispute. The parties hire an arbitrator (a professional, neutral third party), who listens to the information provided by both parties and makes a decision about the dispute. Unlike a mediator, the arbitrator makes a decision and the parties must accept it as final.

Administrative tribunals

Administrative tribunals – both federal and provincial – run parallel to the provincial or territorial and federal court systems. Although administrative tribunals may resemble courts, they are not part of the court system. They are mentioned here because they are an important resource in the government’s system for resolving disputes.

Tribunals are specialized bodies (organizations) that hear disputes about government rules and regulations, like employment insurance, disability benefits, and refugee claims. They are created by statute and focus on very particular areas of law. An adjudicator, not a judge, hears a tribunal case, and the process is less formal than a court hearing.

Tribunal decisions can be appealed to the courts through a process called “judicial review”, but the courts are reluctant to reverse a tribunal’s decision where the tribunal adjudicators have highly specialized expertise or knowledge that the court does not have. For example, an administrative tribunal may have special knowledge about Canadian human rights issues or labour and employment standards.