On November 24, 2020, I had an opportunity to interview Mitchell Rose, chartered mediator, settlement counsel, arbitrator, and principal of Rose Dispute Resolution and Mitchell Rose Law. Mitchell is also the chair of the OBA Alternative Dispute Resolution Section. This interview provides valuable insights into Alternative Dispute Resolution for law students and emerging opportunities for new lawyers.
Why did you pursue a career in ADR? And, what do you find rewarding in your dispute resolution and mediation practice?
I’ve always been something of a peacemaker throughout my life. It’s just my personality. I’ve also been intrigued by true stories from history about warring parties reaching settlements or truces. At the same time, I enjoy the challenge of helping people solve problems, and I am naturally curious. These interests and qualities, combined with my background as a litigator, led me to a passion for mediating civil disputes (as a mediator), as well as ceasing my litigation practice to focus on negotiating resolutions (as a settlement counsel). This has also fueled my recent interest in mediation-arbitration, which I discuss below. Helping people find a way out of conflict is, for me, more satisfying than winning at court – although I certainly enjoyed the latter for many years.
In brief, what is ADR? The definition and the stages of negotiation, mediation, arbitration, and litigation may be self-evident to practising lawyers and qualified practitioners, but not necessarily to law students.
ADR stands for Alternative Dispute Resolution, as in an alternative to resolving disputes through litigation (formal legal proceedings commenced in the public courts), or at least instead resolving litigation in a method other than trial or another type of court hearing.
ADR includes Negotiation (direct discussions and bargaining as between the disputing parties or their lawyers, which can lead to a resolution – or settlement – of the dispute), Mediation (which is where an impartial third party – the mediator – assists the parties with their negotiations with one another with the goal of reaching a settlement), Arbitration (which is where parties who cannot resolve their dispute through negotiation or mediation turn to an impartial third party they have hired – this time they are called the arbitrator – to decide who wins or loses the dispute and why, instead of having a judge play that role). Then there is Mediation-Arbitration, (or, Med-Arb) which is a hybrid process whereby if the parties do not settle at mediation, then the mediator becomes the arbitrator, and makes a binding decision for the parties.
It is also important to keep in mind that the court continues to play a role in all of these types of ADR, if required by the parties, as we need it to ultimately enforce a negotiated or mediated settlement, or an arbitral award (an arbitrator’s decision) if it is not complied with, and we need the court to deal with appeals from arbitral awards, if any.
Finally, there are forms of ADR that are important to mention. They include conflict management coaching and workplace fairness.
What types of disputes are better suited to mediation and arbitration rather than litigation?
I think mediation and arbitration are suitable for almost all types of disputes, with few exceptions and with some caveats that are unique to certain areas of the law. Mediation and arbitration are probably not appropriate for novel claims brought by plaintiffs in which their sole aim is to try to have the court create a new cause of action. In terms of caveats unique to certain areas, family law mediations are considered inappropriate where there is violence or a power imbalance. In other types of legal disputes, these factors may not prohibit the use of ADR. Arbitration is used if a statute or contract requires it, or if the parties and their lawyers have decided that it is more cost- and time-effective to use arbitration instead of the courts. Arbitration can also be attractive where the parties wish for an expert in a particular legal field to decide their case. As well, the fact that arbitration is flexible and can be private are attractive features. Mediation often, but not always, takes place before arbitration – in the hopes that the parties will settle - even if the parties have not agreed to a med-arb process.