Mediation
Hopefully, by now it goes without saying that mediation is tremendously effective in helping parties to resolve employment disputes. While we have mandatory mediation in some parts of Ontario, many jurisdictions do not require mediation before trial, and even where it is required, it can be done toward the end of the litigation process rather than near the beginning. At that point, a lot of time has gone by and a lot of money has been spent. I often recommend pre-litigation mediation so that the parties can avoid spending any unnecessary money on the court process. That is tremendously effective for straightforward notice cases where the facts are not in dispute.
In cases where there are genuine factual issues, such as cases where just cause or harassment is alleged, then it makes sense to allow some discovery before mediation. I often recommend the exchange of affidavits of documents and some examinations for discovery in those cases. I have also had successful split mediations where we have commenced the mediation early in the process, realized that some discovery was necessary, reached agreement on some points such as the notice period, and then resumed the mediation after discoveries in order to address the other issues. That is one great thing about ADR: you can be as creative as you are able to be.
Sometimes one or both parties need to be heard, and will only be receptive to mediation after examinations for discovery. However, I find that in most cases a well conducted mediation will satisfy a party’s need for their “day in court”. As long as the mediator listens to them, then they are often able to move on to discussing the potential resolution of the claim.
In other cases, parties are hung up on principle at the outset and are not open to negotiating resolution. However, as time goes by and costs increase, they are often more amenable to discussion of resolution. In those cases, mediation may have to wait until later in the process.
Arbitration
Arbitration is different in the sense that it is a process and not an event. To begin with, I would encourage counsel to consider putting arbitration clauses into their employment agreements so that the parties can avoid the court process altogether and engage in a more practical and effective dispute resolution process. Alternatively, they can include a mediation clause in the employment agreement which requires that mediation be attempted before a claim can be fired in court.
If there is no contractual requirement to arbitrate, but it is a consideration, it should be raised as early as possible and ideally, before a court action is commenced. The arbitration process will replace the court process so it is important to avoid wasting time and money on one if you are going to use the other approach.
Med-Arb
Med-Arb, or mediation-arbitration, is a hybrid that can be tremendously effective. Essentially, it allows the parties to engage in mediation as usual but, if the mediation does not result in the successful resolution of all issues, then they proceed to arbitration. Typically, the mediator and the arbitrator are one and the same.
There are certain objections to this process that I have addressed in other forums, but for purposes of this article, I would stress the positives. Med-Arb provides a process which guarantees finality, either through settlement or judgement. It can also be more cost effective than two completely separate procedures, particularly since the person overseeing them is the same and will have gained some familiarity with the matter during the mediation phase.
Like mediation, this is something that can and often should be considered very early in the process. However, it can be used at any time that mediation would be appropriate. It can also be quite effective because unlike the typical mediation, where the alternative to a negotiated agreement is the continuation of litigation which might go on for months or years, Med-Arb allows the parties to know with certainty that if they don't settle at mediation there will be a judgement coming fairly soon thereafter. This can be particularly effective where one party would otherwise be content to allow the matter to drag on endlessly.
Pith & Substance
Our court system is simply not efficient or effective for the vast majority of employment disputes. While many members of our Bar regularly lament the state of our court system and, among other things, the lack of a specialized court for employment law, the reality is that one is available to you: alternative dispute resolution. You can use arbitration as your specialized court, choosing your judge and designing your process to suit the particular case. Furthermore, you can and should explore the potential for resolution through mediation. These options should be considered at the very outset, and as I mentioned earlier, counsel who are involved in the preparation of employment agreements should consider whether it would be advisable to include a requirement that any disputes be mediated before a court action is commenced, or arbitrated rather than using the court system at all. We all know how effective ADR can be, and it's time to start using it more regularly and earlier in the process.
About the author
Stuart Rudner has been practicing Employment Law for a quarter of a century and offers ADR services as a Mediator and Arbitrator. For more information, availability and to book him, contact Janis Buckley at janis@rudnerlaw.ca or 416.864.8504 or click here.
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