When we have a legal problem with someone, our first reaction is often to take the person to court. But going to court is not the only way to solve a problem. You have other options that might be in everyone’s best interests.
Negotiation, mediation, conciliation and arbitration are some of the ways you can solve the problem without going to court. Together, these options are called “dispute prevention and resolution processes.”
Sometimes a trial is the best way to solve a problem. It all depends on the situation and the result you want.
Important! The law says that before you take someone to court, you have a legal duty consider other ways of solving the problem.
Negotiation simply means talking with the other person to try to solve the problem.
But some conflicts are complicated. Also, you might find it hard to talk with the person you’re having a problem with. You can ask a friend or family member to help you. Or you can hire a lawyer or someone who specializes in solving legal problems out of court. The person can either negotiate for you or simply be with you while you do the talking.
There are different ways to negotiate, and some are easier than others. But it’s always important to be well prepared before you start negotiating. Identify exactly what you want and have some solutions to suggest to the other person.
In any case, you are always free to choose whether you want to negotiate with the other person. Nothing says you have to.
If you don’t reach an agreement by negotiating, you still have options. You can try to negotiate again at another time, even if your case is already in court. You can also try another way to solve the problem, such as mediation.
Mediation is like negotiation except that a neutral person is involved. This person, called a “mediator,” can make it easier to talk with the other person. The mediator helps each side identify what is important to them and then suggests solutions. If both sides agree, the mediator prepares a written agreement.
The mediator must be fair at all times and can’t take one side over the other. The mediator is not there to decide who is right and who is wrong, but to help you talk things over with the other person and find a solution you can both live with.
Mediation can be used for almost all kinds of cases, even if the case has already been taken to court. For some cases, the law says you must try mediation, such as in small claims court and in family law cases (child custody, support payments, etc.).
Choosing a Mediator
The people involved in a conflict are free to choose the mediator. For some cases, mediators need special training to become “certified mediators.”
Even in cases that don’t require a certified mediator, it can be a good idea to have one. These are some benefits of hiring a certified mediator:
- You will benefit from their specialized knowledge and experience.
- They must follow a code of ethics and have liability insurance.
- They have a duty to keep everything that goes on in mediation strictly confidential. With a few exceptions, even a court can’t force a mediator to reveal what was said during mediation.
Mediators in family law cases must be certified. They can be lawyers, psychologists, social workers, couple and family therapists, guidance counsellors, psychoeducators or notaries, and must be certified as mediators by the professional order they belong to. Employees of youth centres can also become certified mediators.
To learn more about mediation between former couples with children, see our article When Mediation Is Free for Couples.
Conciliation is similar to mediation, but conciliators play a less active role than mediators and they don’t usually suggest solutions. A conciliator’s job is to help the people involved in the conflict talk to one another so they can understand each other’s positions and interests in the hope of reaching an agreement.
Conciliators often work within organizations, such as some courts, government bodies and professional orders. The organization makes the rules for becoming a conciliator.
For example, a judge can act as a conciliator in a case that has been taken to court. This happens at a special meeting called a “settlement conference” when the people involved in the case agree to talk to each other informally to see if there is anything they can agree on.
Some professional orders (lawyers, notaries, architects, etc.) offer the possibility of conciliation for conflicts between a professional and a client. Some specialized courts, such as the Administrative Labour Tribunal also offer a conciliation service.
Arbitration is similar to a court hearing. A person called an “arbitrator” acts as a kind of judge who applies the law to decide the case and who gets what. The decision is called “an arbitration award.”
The law gives arbitrators some special powers, such as the power to administer oaths, that is, the power to accept a person’s formal promise to tell the truth.
But arbitration differs from a court hearing in many ways:
- Arbitration is confidential but most court hearings are public.
- As a general rule, the possibility of using arbitration to solve a conflict must be stated in a law or in a contract (arbitration agreement).
- When the people involved in a conflict go to arbitration, they’re usually not allowed to go to court afterwards with the same conflict.
- The people involved in the conflict usually choose and pay for the arbitrators themselves.
- Most of the time, the arbitrator is a specialist in the subject matter at the heart of the conflict (for example, an engineer, an accountant, etc.).
- The people involved in the conflict can choose some of the rules the arbitrator must follow when making a decision. They can also decide what rules the arbitrator doesn’t have to follow.
Arbitration is used to settle all kinds of conflicts but is most commonly used for business and labour conflicts.
There are some cases where you can’t use arbitration, such as in family matters and in cases dealing with a person’s ability to look after herself or her affairs.
Also, contracts between a person and a merchant for the purchase of goods or services can’t state that the person has to go to arbitration to settle potential problems. But if a person has a problem with a merchant after buying a product or service, the person can still decide to go to arbitration.
The arbitrator’s decision is final and can’t be challenged in court. It’s a good idea to have the decision approved by the court through a process called “homologation.” Once homologated, it has the same value as a court decision. So if one of the people involved in the conflict doesn’t respect the decision, the other person can force him to do what the decision orders.