Over the past several decades, the litigation process and the means by which disputes in litigation get resolved has evolved dramatically. This trend undoubtedly reflects and results from the steadily increasing costs, risks and delays associated with traditional litigation. The two most common private dispute mechanisms are mediation and arbitration with a fusion of the two commonly referred to as a med/arb.

Disputes between parties are draining financially and otherwise and typically trigger serious considerations and consequences to the lives and businesses of the parties involved. Selecting the professional who will serve either to mediate or adjudicate (arbitration) and otherwise steer a dispute to a satisfactory conclusion is of critical importance.

Not all disputes require litigation or an adjudicated outcome whether through Court determination or arbitration. In both such processes, parties to the dispute relinquish control over an outcome to a judge or arbitrator with significant risk and cost consequences. Furthermore, while arbitration proceedings ought to be more time efficient and cost effective to traditional litigation, increasingly and regrettably, experience over time is demonstrating otherwise.

The fundamental consideration in selecting either a mediator or arbitrator is Trust - Trust that the candidate to serve in those roles is not overstating his/her experience and qualifications when first considered for a retainer,

trusted to be objective and fair with the process and to the parties, trusted to be engaged and effective throughout. In the mediation context, the candidate must be trusted to maintain confidentiality in discussions with individual groups, show respect to the parties and process and effectively facilitate progress toward the objective of resolution. In the arbitration context, trust that the arbitrator’s experience, legal knowledge and engagement will ensure, to the maximum degree possible, a correct adjudication having regard to the facts, evidence and applicable law.

As one moves along the continuum of dispute resolution processes, starting with dialogue amongst parties in dispute to the more formal process of facilitated dialogue and negotiation at mediation, the next stop, if necessary and desired by the parties, is a med/arb and, finally, a stand-alone arbitration. Once a dispute resolution process evolves, if necessary, from a mediation to an arbitration, what was initially a voluntary process aimed at a resolution crafted by the parties with the assistance of a mediator becomes, through an arbitration, a more structured process with a binding outcome to the subject dispute delivered by the retained arbitrator or panel of arbitrators.

Resolution is not always achieved or achievable at a mediation but progress and momentum toward that objective should not be wasted in most circumstances.  Further dialogue post-mediation between opposing parties or a transition to the arbitration phase to a med/arb is worthy of consideration. The transition from the “med” to “arb” phase of a med/arb, while more frequently considered by parties and their counsel over time, remains poorly understood even by those retained to serve as mediator/arbitrator. Properly managed and executed, the transition to an arbitration phase of a med/arb, followed by the arbitration itself, can be both efficient and effective.

Arbitration proceedings, whether in the context of a med/arb or a stand-alone arbitration process, triggers a necessary understanding of some unique legal considerations - contractual provisions that might exist between parties in dispute that govern resolution steps, statutes such as the Alberta Arbitration Act and associated case law.  Also, rules and standards of practice, agreement templates and the like formulated, as but one example, by the ADR Institute of Canada, are helpful but need not be rigidly applied. In the hands of an experienced, well-informed, progressive arbitrator, an arbitration proceeding can and should be customized to the particulars of the dispute to be addressed and incorporate the input of the parties where process is concerned. It has been observed by many in the practice and parties with experience with the arbitration process that arbitrations have too often “lost their way” – instead of being an efficient alternative to traditional litigation, they mirror it where delays, complications and cost is concerned.

On my arbitration retainers, counsel know that I encourage collaboration in the structuring of the process to be followed and thereafter ensuring that it is executed in an efficient (time and cost) and practical fashion through to the final Award. If through traditional litigation it is anticipated that a matter might take five plus years to process through pre-trial steps, a month long trial (for sake of illustration) with a reasonable wait time for a decision with a possible appeal to follow, there is rarely any reason why all necessary steps in an arbitration proceeding for such a matter could not be concluded in one year – pre-hearing steps, a one week hearing followed, in short order, by a final Award. Obviously, there are other benefits to an arbitration proceeding beyond efficiencies in time and cost – confidentiality of the proceedings and Award, the selection of the arbitrator or arbitrators by the parties as opposed to random assignment by the Courts, just to mention two examples.

Finally, for matters currently in litigation, there is an increasing trend amongst parties in dispute to abandon traditional litigation mid-stream, so to speak, in favour of either a mediation or arbitration process. Alternatively, I am increasingly being retained as a private case manager of sorts to expedite pre-trial steps in existing litigation through informal and formal determinations on interlocutory disconnects (scope of document production, relevance of questions at Questioning, etc.) and thus assist parties with a speedier and more cost effective path to trial.