It can be challenging to know how to resolve a conflict. Our first reflex may be to go to court, but that’s not the only option! There are other possibilities, and, by law, you must at least consider them before going to court. Negotiation, mediation, conciliation and arbitration are among the available options, and you can choose the one that best suits your needs.
Negotiation: opening a dialogue
Negotiation means discussion with the other party to try to reach an agreement. You’re free to choose how to proceed. The law does not require you to follow any specific process or format.
If you’re involved in a dispute with someone, you can try to negotiate directly with them. If it puts you more at ease, you can ask a friend or family member to accompany you during the negotiation.
You can also hire a professional negotiator to assist by accompanying you or by negotiating on your behalf. The title of “negotiator” does not require any legal certification. So, you can choose anyone you wish.
Preparing for negotiation
It is important to be well-prepared before entering into negotiations. You should:
- determine your objectives
- prepare one or more proposed solutions to present to the other person.
Even if you don’t arrive at a solution through negotiations, you haven’t lost anything. You could try to negotiate later on, even if your dispute is before the courts. You could also try another option, such as mediation.
Mediation: an impartial person to guide you
Mediation is a type of negotiation in which a neutral person facilitates the discussion. This person, the mediator, plays an active role and helps you to identify your needs and interests. The mediator can propose solutions and can even draft an agreement if the mediation succeeds.
The mediator must remain impartial at all times. They can’t favour one person over the other. Nor can they provide an opinion on who’s “right” and who’s “wrong”. Instead, their role is to help you speak with the other person to reach a satisfactory solution.
You can use mediation in any type of conflict. In certain situations, special procedures and services have been established. This is the case when parents separate (to assist with custody, support payments, etc.) and for small claims cases.
For more information on mediation, please see our articles on the topic:
Conciliation: facilitating communication and negotiation
Conciliation is similar to meditation. However, the conciliator plays a less active role than a mediator and generally does not propose solutions. Their role is to facilitate communication and negotiation between the two parties.
Once a dispute has made its way before the courts, a judge may act as a conciliator. The conciliation process takes place during a meeting called a “Settlement Conference”. This conference may be held at the request of the parties. A judge can also recommend that the parties take part in such a conference.
Conciliation procedures are also available in professional orders for cases involving fees for services.
Arbitration: a specialist decides for you
Arbitration is similar to a trial in that a person, the arbitrator, rules upon the case and decides who’s entitled to what. However, it is different from a trial in several ways:
- It is private and confidential, unlike a trial which is open to the public.
- When parties who are in conflict accept to go to arbitration, they generally lose the right to go to court for the same dispute.
- It’s generally the parties involved in the dispute who choose and pay the arbitrator.
- The arbitrator is usually a specialist in the subject matter involved (for example, an engineer, a chartered professional accountant).
- The parties involved in the conflict can choose some of the rules the arbitrator must apply. They can even give the arbitrator permission to ignore certain legal rules.
Arbitration can be used to settle disputes in different areas. In business and labour relations, “arbitration agreements”, providing for conflicts to be submitted to arbitration, are widely used.
Mandatory arbitration clauses are not valid in contracts between a consumer and a merchant. However, nothing prevents a consumer and a merchant from agreeing to arbitration, if a dispute should occur.
Important: you cannot use arbitration in a divorce or a conflict involving custody or child support payments.