Mediation and arbitration support for commercial, business disputes
Mediation and arbitration are types of Alternative Dispute Resolution (ADR) where disputing parties use a neutral “third party”—typically a lawyer with additional training in mediation and arbitration—to, via evaluation, negotiation, and conciliation, resolve their matter outside the court system, foregoing a trial.
ADR is very useful in three circumstances:
First, in some types of disputes, such as condominium disputes, the law requires that the matter be resolved by ADR;
Second, parties can agree to ADR after a dispute arises; and
Third, many commercial and corporate agreements require that ADR, rather than the courts, be used to resolve any dispute that arises under them.
Importantly, the objective of mediation is to reach an agreement – an amicable resolution – that is acceptable to both sides. Arbitration is dispute resolution handled by an arbitrator who makes a final decision. Mediation and arbitration have been used for decades to conclude corporate, commercial, and business disputes, in particular, sensitive or complex disputes.
There’s also a third hybrid approach, mediation-arbitration (med-arb), which combines the two. Canada is a leader in the field being one of the first nations to create med-arb rules of procedure released by the ADR Institute of Canada (ADRIC) in 2020.
While it’s not required to have legal representation in ADR, it is strongly recommended. For those who want advocates with experience and understanding of these processes to assist you during ADR, the commercial mediation, arbitration, med-arb support lawyers at Massey LLP provide effective legal counsel and practical advice.
How we support Alternative Dispute Resolution clients
The commercial meditation, arbitration, and med-arb lawyers at Massey LLP work with family businesses/family offices and high-net-worth individuals to resolve their business and commercial disputes by supporting them during mediation, arbitration, or med-arb.
We focus on two areas in particular:
Using ADR measures to resolve complex disputes; and
Enforcing foreign arbitral awards.
Types of disputes that we focus on
Shareholder and partnership disputes – exit clause litigation (shotgun clauses, best offers, etc.)
Contractual disputes
Family business disputes
Executive employment disputes
Disputes arising out of sensitive subject matter that could be damaging to the reputation of a board member, executive, or major shareholder.
Why work with our Toronto commercial ADR support lawyers?
Our Toronto commercial mediator, arbitrator, med-arb support lawyers caution that while it’s not mandatory to have personal legal counsel during ADR (and it might be tempting to handle disputes yourself), there are advantages to having capable counsel to protect your legal rights – especially for complex issues.
The ADR support team at Massey LLP note that having a private lawyer by your side can help you avoid these pitfalls:
We ensure you don’t miss limitation periods under the Limitations Act (LA) or any contract;
We ensure that you satisfy all the procedural requirements of the ADR process, and take advantage of every opportunity to advance your case;
We ensure you don’t end up procedurally disadvantaged;
We know there’s no practical right to appeal to fix errors, so it’s important to “get it right the first time”;
We appear at all levels of court for enforcement matters;
We provide advice both before and during the process to ensure you understand your legal rights and obligations.
The lawyers at Massey LLP know that many times, parties turn to ADR in a bid to avoid civil litigation. In mediation, a trained mediator assists the parties to come to an agreement on their own, engaging them on the issues and coming to their own voluntary conclusion rather than imposing a decision.
Our Toronto commercial mediator, arbitrator, med-arb support lawyers explain that with arbitration there’s a neutral arbitrator who acts like a judge who is tasked with resolving the matter. In many ways, it can resemble a traditional court process as arguments and evidence are presented and a decision is made by the arbitrator. However, there are important differences between the two processes:
Unlike mediation, arbitration decisions are binding.
But there are drawbacks to both: mediation can end at a dead-end while arbitration leaves the parties out of making the final decision.
There’s a third option: put the two together and handle the matter with commercial med-arb.
Our ADR support counsel know that med-arb is governed by the Arbitration Act (AA) the International Commercial Arbitration Act (ICAA), and the Reciprocal Enforcement of Judgments Act and saves costs by not having to engage two separate individuals to fill the pivotal neutral roles at the head of the table – the same person assumes the job of mediator and moves on to become arbitrator on the same matter, if necessary.
Med-arb has the flexibility of mediation and the guarantee of a decision. And the process of downloading information from one process to another is streamlined because it’s the same neutral party, thus saving money, time—and it’s private.
The Massey LLP med-arb support counsel team is creative, and effective at being a steady guide at your side to ensure the procedure allows you to put on your best case – while resolving the dispute.
What are the 5 benefits of mediation?
Here are 4 reasons why:
Costs less than going to trial.
Faster than going to trial; the courts are backlogged.
The disputing parties work out their own agreement (many corporate or business clients are dissatisfied with the decision imposed on them by a judge or jury).
Your dispute remains private and confidential. This matters a great deal when there is potential reputational damage that could be brought out in a court proceeding or trial.
Once signed, a mediation agreement is enforceable.
Our ADR support counsel team summarizes leading cases
Our Toronto commercial mediation, arbitration, med-arb support lawyers say it’s important to know the case law when handling these disputes, like for example the decision Rogers Wireless v. Muroff [2007] in which the Supreme Court of Canada discusses arbitration clauses.
The Massey LLP’s ADR support team also knows the pertinent facts that came out of Yugraneft Corp. v. Rexx Management Corp. [2010] that found limitation periods apply to foreign arbitral awards.
Further, our lawyers understand the case Sattva Capital Corp. v. Creston Moly Corp. [2014] in which the top court looked at a judicial review of arbitrations and found that reasonableness is the appropriate standard of review of an arbitrator’s decision.
Massey LLP’s experienced ADR support lawyers are particularly results-focused and effective at ensuring the commercial mediation, arbitration, or med-arb process allows you to put on your best case – while resolving the dispute.
When you’ve elected to resolve your commercial dispute through ADR, call on our team to provide effective and insightful counsel.
What is needed for a successful mediation?
Focusing on interests, not positions of both sides;
Consideration of the other party’s viewpoint and interests;
Willingness to compromise, by both parties.
Client-lawyer confidentiality, meaning anything you say to your lawyer is privileged;
Lawyers know the law;
Lawyers know germane precedents, in other words, how judges have ruled on similar disputes that went to trial;
Lawyers are trained negotiators, helping to find common ground between disputing parties within the boundaries of the law;
There is a lot of truth to the adage “you get the agreement you negotiate.”
2 ADR myths—and a tip for success
The ADR support lawyers at Massey LLP know it’s important for parties to ignore the myths that surround alternative dispute resolution:
Myth: “Mediation is just a roadblock in getting to a hearing.” Mediation can be very useful for getting perspective on a case, having a neutral party advise the other side of the weakness of their case, or narrowing the issues on an arbitration or trial.
Myth: “Arbitration is just a private trial.” Treating it this way actually loses much of the advantage of arbitration over the Ontario court system, including the involvement, of an arbitrator with an ability to put a particular focus on the matters at issue, and flexibility in procedure, say our ADR support lawyers.
Tip: Use all aspects of the arbitration process, working collaboratively with the arbitrator, can lead to efficient, speedy resolution of very complex matters.
7 reasons why parties choose arbitration
It’s fast: A main advantage to arbitration is its ability to resolve disputes quickly, instead of the plodding pace of a court case.
You can pick your arbitrator: You have the chance to choose the neutral person who will make the decision. That’s important especially if there are technical issues, the neutral party can be someone with background in the area, instead of relying on a judge who probably doesn’t have the same level of experience in it and must rely on hearing time-consuming expert witness evidence.
Not as hostile: Since the parties work together in arbitration as opposed to litigation, it can foster a more peaceful resolution of the dispute.
It’s private: Often, cases that go to arbitration require the result to be confidential because it involves privileged information, sensitivities or even a risk to reputation. Remember, our courts are open to the public, including the reporters.
The rules are up to you: They can be as formal or as informal as you like.
It’s less expensive than litigation: Costs are a lot less in arbitration than court.
Decisions are binding: Under the Commercial Arbitration Act, everyone has agreed that the arbiter’s decision is final.
Our lawyers define ADR legal terms
Alternative Dispute Resolution (ADR) – ADR is the umbrella over the different ways parties can resolve legal disputes, using procedures other than those in traditional courts. Mediation, arbitration, and commercial mediation-arbitration (med-arb) are practice areas within ADR.
Mediation – Mediation is an informal way for parties embroiled in a lawsuit or dispute to come to an agreement and avoid going to court and trial. The mediator, a third party who is neutral, helps find a solution by assisting the parties to communicate, find common ground, and resolve their dispute themselves.
The mediation process is not about winning or losing, but instead coming to an agreement using common interests rather than relying on entrenched positions, with the goals of coming to resolution more quickly, keeping disputes under the radar, and saving the high costs of a trial.
In Ontario, the Mandatory Mediation Program applies in Windsor, Toronto, and Ottawa where parties must go to mediation for certain types of civil lawsuits.
Arbitration – Arbitration is a way for parties to end a legal dispute out of court, confidentially, and quickly. They agree to use a private, independent arbitrator, and present their case before them. The arbitrator’s decision is final and must be accepted.
The Arbitration Act limits the circumstances an appeal will be allowed, and D Lands Inc. v. KS Victoria and King Inc. [2022] outlines what must be taken into account if one plans to launch an appeal of an arbitration decision.
Arbitration-mediation – Arbitration-mediation is the use of a Chartered Mediator-Arbitrator (C. Med-Arb), a single neutral individual as mediator to first attempt to broker a settlement, failing which they will move to become arbitrator to make a binding decision.
Get started on your mediation, contact Massey LLP
Our commercial mediation, arbitration, med-arb support team assists businesses and high-net-worth individuals settle their commercial and business disputes through ADR. Our lawyers are well-positioned to advise and guide you on the processes, propelling you to a successful resolution of your dispute.
Call or email us now, to get started on resolving your dispute.
