Coaching Services and Conflict Resolution

Coaching Services and Conflict Resolution 

“Coaching is not about teaching the caterpillar how to fly, it’s about creating an opening for it to see the possibility.” – Paul Lefebvre

The fields of coaching and conflict coaching are developing rapidly across the world. As part of this collaboration, we would like to tell our readers more about Coaching Services, what’s involved and why you should try it to make changes in your life and resolve conflict.

Mediate2go: Coaching Services and Conflict Resolution

What is coaching?

Coaching is a process where a professional coach works with an individual on a one-on-one basis, helping them work towards a goal of their choosing. Coaching can help someone see things about themselves in a new light, in addition to the people around them.[1] Coaching is challenging, and encourages inner reflection and future orientation. Instead of staying stuck in the past, a coach can help individuals move forward in their lives – however that might look like. Interestingly, coaching is often about realizing insights and skills that someone already possessed, but have just not yet honed in. Coaching is not therapy, as the parties do not delve into deep emotional and psychological problems, nor is it mediation, as only one party is involved.

What are some situations that I should seek coaching for?

• Difficulty dealing with a challenging workplace situation as a manager or employee;
• Difficulty asserting yourself with those around you;
• Difficulty giving and receiving feedback to and from others;
• Desire to move on and/or escape from a situation, such as a toxic workplace to find a new job;
• Difficulty feeling motivated at work;
• Feeling stuck in a relationship;
• Desire to fix a relationship;
• Desire to change careers;
• Desire to set boundaries with negative family members or friends;
• Desire to improve oneself in a particular area, such as building confidence;

What does coaching offer?

“The coaching process is both transformational and experimental—a voyage of personal and professional discovery and growth.[2]”

Coaching can do the following:

• Help someone become self-aware and build skills to meet challenges; [3]
• Help someone become flexible and highly adaptable to manage difficult decisions; [4]
• Help someone improve problem solving skills;
• Help someone prepare for and effectively resolve conflicts; [5]
• Help someone identify challenges or motivational issues to better achieve their goals;
• Help someone enhance their leadership skills and improve their management style;[6]
• Help someone achieve success with advice and feedback;

 How do coaching and conflict resolution work hand-in-hand?

Conflict often becomes unhealthy, negative and escalatory if parties do not know how to identify issues and resolve conflict effectively. Conflict escalation complicates interactions to make things much harder to address. One might not be able to identify the real problems in the situation, and might even contribute further to tensions by not addressing these concerns effectively.

Coaching can help individuals address issues that might lead to conflict escalation. It might even help people prevent the conflict altogether, or simply provide them with tools to better address it. 

Examples of coaching helping parties resolve conflict

• A manager does not have sufficient training and comfort in giving feedback to employees. During a performance evaluation, the manager gives feedback in a way the leaves the employee feeling unappreciated or insulted. The employee files a complaint with the organization. Coaching might help the manager learn how to provide and listen to feedback so the employee feels motivated and understood, leading to improved performance;
• An employee seems to complain about colleagues to their manager on a daily basis, leading to increased frustration for the manager. The manager is concerned about gossip in the workplace and increased tensions between team members. The individual becomes angry on a regular basis and disruptive in team meetings. Coaching might help the employee learn how to set appropriate boundaries in the workplace, and how to better adapt to those around him or her, which may improve their integration in the team. In other words, the coach might help them become a self-leader;
• An employee seems to have lost motivation to do their job. They no longer try as hard to solve problems in their role, leading to the frustration of colleagues who need to shoulder the burden. A coach could help the employee identify challenges in completing their tasks, and work with them to align their personal goals to those of the organization to improve motivation and thus performance;
• A high level executive believes that the leadership team isn’t doing enough to achieve organizational goals. She starts to express anger disrespectfully at meetings and begins micro-managing those around her. People around start discussing ways to remove them from the team. A coach could help the executive learn how to address this person, or work with them directly. In this situation, the coach would indirectly help prevent unnecessary conflict in the organization.

What is a typical coaching session?

Coaching is customizable, based on the needs of the client and style of the coach. This is the general process, although your coach can explain the process they will use.

1. Client contacts the coach, who describes the process and discusses fees;
2. If the client agrees, they meet and discuss the process further, and the coach helps the client set a goal, or several goals, based on their needs;
3. Client and coach work together to help find ways of achieving that goal, which might be over one or multiple sessions over many days or weeks. Various techniques might be used, such as brainstorming, goal-setting, homework, visioning and role-playing;
4. After the goal has been achieved, or the coach and/or client otherwise agree, the process is ended.

 

European Mentoring and Coaching Council

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[1] Coaching Practices for Managers, Canadian Government, http://www.managers-gestionnaires.gc.ca/documents/coaching_practices-pratiques_de_coaching-eng.pdf

[2] The Canada School of Public Service, http://www.csps-efpc.gc.ca/forlearners/coaching-eng.aspx

[3] The Canada School of Public Service, http://www.csps-efpc.gc.ca/forlearners/coaching-eng.aspx

[4] The Canada School of Public Service, http://www.csps-efpc.gc.ca/forlearners/coaching-eng.aspx

[5] The Canada School of Public Service, http://www.csps-efpc.gc.ca/forlearners/coaching-eng.aspx

[6] Public Service Commission of Canada, http://www.psc-cfp.gc.ca/ppc-cpp/ecs-scc/cochg-serv-cochg-eng.htm

Cheating in Relationships - Advice on Adultery

Cheating in Relationships - Advice on Adultery

Adultery, infidelity, emotional adultery, affairs, cheaters, emotional infidelity or simply cheating in a relationship. In the words of Sam Smith, "I know I'm not the only one". What do you do about it? How do I resolve this conflict?

"Why do women cheat?" "Why do men cheat?"

Individually, our need for affirmation and attention, how we manage our boundaries, and how capable we are of being loyal to our partner are all relevant. Attention is powerful. We all want to feel wanted, and some people are more vulnerable than others to the advances of someone outside the marriage. Some individuals are better able to make decisions about healthy boundaries (and poor boundaries can lead to situations that are dangerous). And some people just aren't capable of having the empathy or loyalty needed to be true to a partner.

In the relationship, having unmet needs can be part of the picture. If we are lacking affection or connection, we can be more vulnerable to situations and personal urges.
 
Situations arise that are simply dangerous. Private conversations that seem harmless... working intimately with someone...having someone else make advances that we aren't prepared for...can all contribute to why an affair happened. I believe that the crazy "connected" world we live in has led to an increase in opportunities to create connections outside our relationships. (see my blog on how social media threatens marriages). 

I often meet people who either suspect their partner is cheating, or have discovered they are. Let's talk about how to manage those situations.

Signs of Infidelity  

Looking for emotional affair signs?  How to catch a cheater?

How Can I Tell? Be careful not to make assumptions. 

You can't know for certain, unless you have evidence. Most typically, affairs leave evidence; they do get discovered if you are paying attention. Gut instincts are often accurate, but there are also many reasons partners pull away or change.

Pay attention to your gut, and to your partner's behaviours, but only express what is REAL, and don't make accusations. So it's appropriate to say "I feel less connected to you lately", "It worries me that your phone is never around", "We're making love less and I don't know why", "You used to cuddle up against me at night and you've stopped."  Try to stick with what is really happening, and not make accusations based on fears alone. See where that goes. You might get important information about what they're experiencing or need. This can help you fix your relationship, without a fight going bad.

If there's been cheating in the past, it's okay to say "when you ___, I get scared that I'm not enough...that it will happen again".

What should I do if I my partner cheats?

Digging/snooping is both understandable and disrespectful.

If you truly believe your partner is cheating (if you've expressed concerns and in return get defensiveness, blame, or denial of a problem), then I wouldn't judge you if you did some digging, but in general...if you want to build trust with your partner... act in a trusting way.

I often have clients who rhyme off the fears they have and what supports their fears, then they say "Wait a minute...I truly don't believe this is happening." They want to be helped into a more trusting place. In this case, focus on the evidence that your partner is loyal, and stop snooping. It will feed your mistrust. In this case, don't spy on your spouse!

If you Discover an Affair.

If you discover your partner is cheating, clearly you both have some decisions to make about what you want. There are no rules; some people can't stay together after a small incident, and some couples can rebuild after a major breach of trust. Seeking a good therapist can help you sort out your reactions and needs, but no one can make this decision for you. 

If one person leaves before it's talked about, often the other person is left with unresolved emotions and unanswered questions. Again, a therapist can help you make sense of what's happened, even though you may not ever know the full truth. 

If you decide to leave, then read our blog about when to choose therapy and when to divorce, and then consult a mediator.

If you're staying together...know what you need and ask for it. 

Should I stay or Should I go? How will you move on?

• Ask. Many people in your position need information about the affair. You might ask yourself, why do men cheat, or why do women cheat? It depends on the person. You deserve to know why, and if the relationship is to be repaired, it's vital for all your questions to be answered. Remember, don't stay in a destructive relationship.
• Needs. You might need comfort and to be reminded that it's not your fault. It's easy to be angry, but expressing your vulnerable needs to someone who just hurt you isn't easy but it can help the healing process, if they can respond with care. Also, your partner isn't your only source of support. Spend time with people who love you. 
• Express Respectfully. You certainly will need to express all kinds of emotions, and your partner can be expected to hear and tolerate those emotions if they're expressed safely. Belittling, verbal abuse or relentless punishing won't help you rebuild trust and will cement resentment. Don't let conflict escalate, as it will just make things more complicated.
• Request Transparency. You will likely benefit from greater transparency. If you're not already, sharing email, phone and social media passwords is a strong gesture of openness that builds trust. 
• Don't Avoid. Affairs that aren't addressed quickly create cavities of despair and mistrust in the life of a marriage. Burying it in the sand and not addressing it is dangerous. If you have trouble talking about it, seeing a qualified therapist can help start the conversation.

"I cheated on my husband." "I cheated on my wife."

You need to be honest with yourself and your partner. Maybe it was impulse, or it happened over a long period. You might feel a great deal of guilt. Seek the help of a trained therapist to know what to do next. 

Cheating in Relationships - Mediate to Go

About the Author – Cheating in Relationships - Advice on Adultery

Lynda Martens is the Wabisabi Therapist and a contributor to the Mediateto Go Blog. Please read her other contributions by searching on this page for Lynda Martens.

Bullying in the Workplace – Bad Bosses and Hostile Work Environments

Bullying in the Workplace – Bad Bosses and Hostile Work Environments

Bullying in the Workplace – Bad Bosses and Hostile Work Environments

Maybe you experienced bullying as a child in school. Bullying in schools was, and is still common place in some institutions. If so, those are memories you would likely prefer to leave behind. This might not be possible if you face a hostile work environment due to bullying at work. Are you being bullied at work? Many people are dealing with bullying at work on a daily basis, and don’t know where to turn for help. Don’t be ashamed, as it is not your fault. You are not responsible for someone else’s behaviour. Maybe you have even asked yourself whether you should stay or whether you should go. Is it time to move on and work with another organization? Don’t leave the organization yet, necessarily.

What is workplace bullying? What is workplace harassment? 

How does one define bullying in the workplace?

Bullying is an aggressive act, meant to destabilize and reduce the power of another, leaving the victim feeling isolated, rejected and hurt. Unfortunately for some people, they might experience bullying later on in adult life in the context of working relationships. Workplace bullying “usually involves repeated incidents or a pattern of behaviour that is intended to intimidate, offend, degrade or humiliate a particular person or group of people.[1]”

Although the title of the article is, “I have a bad boss”, workplace harassment takes place between all types of relationships in the workplace, between customers and employees, employees against other employees, and even employees against managers at times.

What is workplace harassment? What constitutes bullying at work?

Workplace harassment is basically the same as workplace bullying, except harassment is the legal term for offensive and/or hurtful behaviour that is unwanted and often repetitive in nature. This term might be important depending on where you live, and where you work, as the definition might be used to determine whether the behaviour itself if considered harassment. If it is, then you might be able to take recourse during those legislative schemes or administrative bodies. If not, you might need to try other approaches to dealing with the harassment.

Is bullying at work illegal?

In some jurisdictions, workplace harassment is indeed illegal, and is explicitly covered in workplace-related legislation. Ask your government ministry of employment and/or workplace compensation board to learn more about the legalities around appropriate workplace behaviour and workplace harassment. You might also have civil recourses through the courts, and/or recourse if the behaviour is viewed as a form of criminal harassment. In that sense, might consider reaching out to your local police station, say the harassment is serious. Read about the difference between reporting harassment in the workplace and to the police. 

Definition of Workplace Bullying in the UK

According to the UK Advisory, Conciliation and Arbitration Service (ACAS):
Bullying is "offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient."

Definition of Workplace Bullying in Australia

According to Safe Work Australia, a statutory agency, workplace bullying is defined as
"repeated and unreasonable behaviour directed toward a worker or group of workers that creates a risk to health and safety".

The Government of Western Australia Chamber of Commerce said:
"Bullying in the workplace may be described as repeated inappropriate behaviour that can occur at work and/or in the course of employment. It may be direct or indirect, verbal or physical, or some form of negative interaction between one or more persons against another or others. Bullying behaviour can be regarded as undermining an individual's right to dignity at work."

The Australian Human Rights Commission said one definition is:
“the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that intimidates, offends, degrades or humiliates a worker”.

Definition of Workplace Bullying in New Zealand

"Bullying may be seen as something that someone repeatedly does or says to gain power and dominance over another, including any action or implied action, such as threats, intended to cause fear and distress.” Evans v Gen-i Limited unreported, D King, 29 August 2005, AA 333/05. 

Definition of Workplace Bullying in the United States

The Washington State Department of Labor & Industries:

"Workplace bullying refers to repeated, unreasonable actions of individuals (or a group) directed towards an employee (or a group of employees), which are intended to intimidate, degrade, humiliate, or undermine; or which create a risk to the health or safety of the employee(s)."

Definition of Workplace Harassment in Canada

Treasury Board Secretariat - Federal Public Service workers

Under the Policy on Harassment Prevention and Resolution, harassment is defined as: "improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. 

It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction)."

Quebec Commission des Normes du Travail - Quebec workers

"Psychological harassment at work is vexatious behaviour in the form of repeated conduct, verbal comments, actions or gestures: that are hostile or unwanted, that affect the employee’s dignity or psychological or physical integrity, that make the work environment harmful."

Ontario

The Occupational Health and Safety Act defines workplace harassment as "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome."

This definition of workplace harassment is broad enough to include harassment prohibited under the Ontario Human Rights Code, as well as "psychological harassment" or "personal harassment."

Some of the types of harassment that workers could experience in the workplace include sexual harassment, teasing, intimidating or offensive jokes or innuendos, display or circulation of offensive pictures or materials, unwelcome, offensive, or intimidating phone calls, or bullying. Leering, unwelcome gifts or attention, offensive gestures, or spreading rumours could also be considered harassment.

Types of workplace harassment? Examples of workplace harassment. 

What does workplace bullying and harassment look like?

Bullying can take many forms, from subtle moves to isolate someone to overt acts of aggression. Some examples include spreading hurtful rumours and gossip about others that isn’t true, intimidating someone, undermining someone’s work on purpose, threatening or abusing someone, removing someone’s responsibilities without reason, changing work guidelines constantly, making offensive jokes that are obvious, yelling, belittling someone, tampering with someone’s personal items or equipment, intruding on someone’s privacy, or making someone feel excluded or unwanted.[2] Even email bullying at work might take place, which might include any threatening behaviour over email. All of these behaviours demean someone, and over time, might erode their self-esteem and trust in themselves and trust in others. It also creates an unhealthy work environment, whereby the victim and other team members might start to fear confrontation or simply coming into work at all.

How does bullying start?

Bullying might start for varying reasons. Maybe someone has anger management problems and fails to address their anger effectively, taking it out on others. Maybe someone was bullied at another time in their life, and they are re-living the pattern – maybe they do not realize the true impact of their behaviour. Maybe the person has a personality type that makes it more difficult to empathize with others. But remember, it doesn’t matter that much why it started, it just matters that you are addressing it, so that it stops. These reasons do not excuse someone’s destructive behaviour. You still need to set boundaries.

Impact and consequences of workplace bullying

Workplace bullying hurts people, the team and the organization. The human impacts include frustration, helplessness, decreased confidence, anxiety, family tension, low morale and more.[3]

Workplace bullying also hurts your organization or company. Impacts include, increased turnover, costs to workplace health programs, increased risk to workplace incidents, decreased productivity, compromised corporate brand and decreased customer service quality.[4]

How to deal with a bully at work?

If you believe you are a victim of harassment or workplace bullying, also known as office bullying, take some of these steps, and also read out blog about Bullying and Harassment with some tips;

1. Make it clear to the person that their behaviour is unwanted. Have a witness, such as a labour/union representative or human resources officer with you.
2. Document everything, including the date, time and behaviour, the impact on you, the witnesses present and the outcome. If there is written proof, keep this as well.
3. Report each incident to the appropriate person. Seek out the services of an ombudsman, special contact in the organization or human resources.[5] They will be able to provide advice on how to report workplace bullying.
4. Don’t convince yourself that this behaviour is acceptable or somehow warranted by something that you have done. Victims may feel vulnerable and as if they have no option but to remain silent.
5. Take these steps before you decide to quit your job. Although there may be a power imbalance between the victim and the bully, one person or even a group of persons is not necessarily representative of the whole organization.

Read our blog about what an employer can do to address harassment effectively. If you are a witness to workplace harassment, be sure to reach out for support, and follow the above recommendations as well (including documentation and reporting). Thank you for being a self-leader, and helping to contribute to positive change in your organization. Instead of allowing the conflict to escalate negatively, you are resolving the conflict.

Top 7 Tips for Mediators Addressing Workplace Harassment

If you are a mediator, how do you deal with workplace harassment? 

1. Are the clients fully capable and interested in mediating the case? If one of the clients might be emotionally and psychologically struggling, it might be inappropriate to invite them to participate in mediation unless they have approval from their doctor or attending professional;
2. Consider starting your time with the clients as a consultant to discuss their options, and then with conflict coaching so they are empowered to express their concerns when the time for mediation is appropriate. This is likely the best time to have the parties learn about the harassment policy and process, so that their expectations are managed. The truth is, the other person might not be separated (fired), so they might be asked to resolve the conflict with the help of a mediator. Of course, mediation is voluntary, but parties might aim for a collaborative solution, especially if one of the parties says sorry and genuinely will make an effort to improve their behaviour;
3. Before the mediation, ensure that the parties are aware of their rights and obligations. Give them this website to learn more about harassment and boundaries in the workplace. Also, ask the parties if they would like a support person or lawyer present in the sessions, and offer the same to the other party as well;
4. They might not be interested in working face-to-face with the other party, so if they are healthy and very interested in pursuing mediation, offer some alternative approaches, such as shuttle mediation (where the parties are in separate rooms and the mediator goes between each to manage the discussions and negotiation), or invite the parties to sit in the same room, but have them facing other directions;
5. Many parts of the mediation might be similar, whereby the mediator is there to guide discussions in a safe environment with appropriate communication norms, ensuring that both parties are heard and that they are able to find a solution that works for both of them;
6. A big part of the mediation might be future-focused, helping the parties establish new norms for working together. Work with them to come up with some broad norms for their relationship, and then talk through some examples and how they would be applied.
7. Discuss ways in which parties might ask for help or talk to the other person, if there is a ‘relapse’ in behaviour.

Keywords:
 

Types of bullying, bullying and mental health, the bully at work, workplacebullying, types of workplace harassment, intimidation at work, retaliation in the workplace, against bullying, verbal abuse in the workplace.

About the Author - Bullying in the Workplace – Bad Bosses and Hostile Work Environments

Rhema - Legal Dispute Blogger in collaboration with Mediate2go

Rhema Kang is a litigation lawyer. She graduated with an Honours Bachelor of Arts from the University of Toronto in International Relations, and Juris Doctor from the University of Ottawa. She first became excited about mediation while working for the Honourable George W. Adams, a prominent Canadian mediator who handles legal disputes worth up to several hundred million dollars. Rhema was the researcher behind the book, Mediating Justice: Legal Dispute Negotiations, and won second prize in the FMC Negotiation Competition. Rhema enjoys dark chocolate with sea salt and finds it awkward to write about herself in the third person.

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[1] Canadian Centre for Occupational Health and Safety

[2] Canadian Centre for Occupational Health and Safety

[3] Canadian Centre for Occupational Health and Safety

[4] Canadian Centre for Occupational Health and Safety

[5] Canadian Centre for Occupational Health and Safety

Introduction to Real Estate Disputes

Introduction to Real Estate Disputes

Tip: Before you sign a real estate contract, check to see if it has a Mediation Clause.

Real Estate touches most of our lives; buying your first home, dreaming of that 2nd home away from the the city, or downsizing after your children have started having their own kids. Dreams of opening that bakery after retirement and finding the perfect location on Main Street, only to discover the city use permit is no longer valid due to expired city permits.

Sometimes, what may have appeared as the perfect transaction, turns into a nightmare between buyers and sellers, landlord and tenants, or parties of interest such as you and the Home Owners Association. Disputes do occur in Real Estate, which can be costly, emotional, stressful, and most importantly, time consuming. Here are some examples.

Examples real estate conflicts:

1. The buyers purchased their Bay Area home. Within days of purchasing, a plumbing back-up causes damage. The problem was rooted in the sewer system, and the cost to repair included new sewer lines to be constructed from the street to the house. Unresolved for several months, it continued to back-up. The buyers went to an Attorney. 
2. The buyers alleged Non Disclosure - an accusation which the Sellers denied. The legal clock began to tick for all concerned. 
3. The homeowner purchased property with a Homeowners Association that offered well manicured lawns, lush landscaping and high-end homes. The agreement signed came with CCR'S (Covenants Conditions and Restrictions) requiring the purchaser to landscape the property. The new homeowner declined to landscape according to the Homeowner's Association. The Association had a duty to enforce the rules, so another legal battle ensued. 
4. The landlord and tenant fight over a security deposit over damages. Digging deeper, no one did a rental agreement or a walk thru prior to renting or moving out.

Alternative Dispute Resolution and Real Estate

When a dispute does occur in real estate, it is not the end of the world. In California, as within other jurisdictions, Alternative Dispute Resolution (ADR) is now playing a larger role to resolve these challenges as they arise.

Real Estate contracts written by the California Association of Realtors require that parties try mediation prior to a process of arbitration or litigation. Mediation can help parties with various types of real estate contracts, including buyers, sellers, landlords and tenants. In November, the California Association of Realtors formed a group of mediators specialized in real estate disputes to help resolve issues. The group, known as The Mediation Center, helps parties avoid unnecessarily long legal battles.

Mediation services offers many benefits. A conflict that might have lasted months or years can be resolved within a matter of hours. For example, a buyer and seller of the Bay Area had a conflict about tree roots going over each other's property. Four hours after the mediation commenced, the parties had a written settlement. Courts also support ADR via "small claims" or civil unlimited cases. One can gain information at the local Self Help Center or the Court clerk in each county in California. The Superior Court in Sonora of Tuolumne County also has a active mediation panel. Those members settle in excess of 80% of disputes. The disputants often leave the court happy, and rarely return.

Private mediation is another option for disputants.

Conclusion - Introduction to Real Estate Disputes

There is saying in the legal community; "Why litigate when you can mediate?" Be willing to resolve your dispute with mediation, which can often bring about a great many benefits, versus the the frustration and expense of litigation.

About the author - Real Estate Disputes

Jim W Hildreth, Mediator, focuses his practice on California Real Estate Disputes. He serves on multiple Superior Court rosters as a civil mediator and was appointed to the California Association of Realtors as a mediator. He serves the San Francisco Bay Area, Central Valley & Mother Lode. Contact Jim Hildreth and visit his site.

What is ADR?

What is ADR?

Alternative Dispute Resolution

Introduction to ADR

Popular television shows depict trials as the climatic event – an intellectual sparring of wit and strategy – and the whole dispute is over within an hour. In reality, legal disputes drag over months or years before a trial may take place. Preparation can be tedious and insipid, while 95% of lawsuits will settle and never even go to trial, which has led some lawyers to write about the phenomenon of the “Vanishing Trial”.[1]

Most lawsuits today are resolved through Alternative Dispute Resolution (ADR). ADR refers to various processes to resolve disputes outside of the formal public courts system. The main forms of ADR are negotiation, mediation, and arbitration, although there are also hybrid processes such as the minitrial, med-arb, and early neutral evaluation.

A Spectrum of ADR Options

ADR options are organized along a spectrum, from negotiation, which is the least formal process, to arbitration, which is the most formal process and therefore, the most similar to a trial. The more informal the process, the more control the parties have. In more formal processes such as arbitration, the parties have less control because the outcome is determined by a third party. Mediation falls somewhere in between. These processes are by no means mutually exclusive, and parties may pursue these options in sequence, or even at the same time.

Negotiation is the most informal process and has the fewest rules and procedures. Parties may negotiate directly with each other, or through their lawyers. Mediation involves a neutral third-party who does not impose a solution but helps the parties reach a resolution by facilitating more structured negotiations. The parties retain control over the final agreement. Arbitration is the most formal process where a third party adjudicator has the power to impose a binding solution on the parties after hearing each party’s position.

Key Differences Between ADR and the Traditional Trial

Trials are open, so all members of the public, including journalists, are welcome to attend (with a few exceptions in special cases). Furthermore, trial decisions are published and establish a precedent for future cases. In contrast, ADR is private and the result remains confidential between the parties.

The courts system is a formal process with rules of civil procedure and statutory deadlines. ADR is crafted to suit the needs and demands of the parties, and may take many different forms.

Trials are adversarial, where each party advocates that the law favours its position, and the judge ultimately rules in favour of one party. Although in ADR each party is seeking to maximize personal gains, the parties accomplish this through cooperation and compromise, rather than a winner-takes-all situation. Especially in non-adjudicative options such as mediation, “a mediator can often persuade the parties to resolve their dispute without determining which of their positions is ‘right’”. [2] Because ADR is less adversarial, it is better suited when parties want to continue their relationship beyond the present dispute.

Advantages of ADR

Some of the advantages that make ADR appealing are:

1.     Cost

The cost of a trial has made it prohibitive. In 1995, it cost each party over $40,000 in legal fees to go to trial, and in 2011, this estimate was close to $60,000.[3] This astronomical cost is out of reach for many people and even corporations, and is often disproportionate to the amount in dispute. Moreover, since the losing party is often required to pay part of the winning party’s legal fees on top of its own, this penalty serves as a looming risk and a deterrent for parties to go to trial.

The cost of resolving a dispute informally through ADR is much lower, and parties have more control over the process and the resulting legal fees. For smaller disputes, parties may choose less costly mediators, but select specialized mediators at a higher price for more complex disputes. A dispute over a $100 million may be resolved in a single day, negating the need to spend months of expensive preparation for a trial.

2.     Speed and efficiency

A backlog in the court system has meant when litigants request a trial date, they have to wait one or two years from that point, and even longer in some jurisdictions. Even after trial, parties may wait weeks or months for a decision to be released.

In contrast, a mediation or arbitration can be scheduled within a few months, and can be resolved fairly quickly. While courts usually discourage forum-shopping, which is choosing one court over another, ADR allows the parties to choose a decision-maker who best fits their schedule and needs. In mediation, the mediator does not make a decision, rather helping the parties come to a solution collaboratively. ADR may also remove the need for pre-trial procedures such as examinations-for-discovery and motions, which may be time-consuming and cause further delays. Instead, if there is a dispute about evidence or submissions, the parties may informally negotiate a mutually acceptable solution.

3.     Customizing the process

ADR is flexible to become whatever the parties agree to make of it. Parties may set their own procedures and decide which law applies. Most courts have judges who are generalists and must decide on cases ranging from criminal convictions to complex shareholder disputes – although there a few exceptions for Family Law Court or the Commercial List in Toronto. But in ADR, parties may choose a decision-maker who is a recognized expert in the area of the dispute.

Parties are free to use whichever form of ADR best matches their priorities. Parties may choose to air their grievances, or to never speak to each other except through a neutral third-party. They can choose whether their priority is to reconcile the parties in conflict or simply to reach a binding decision for the dispute at hand. Moreover, the parties can tailor the resolution to their own needs. Unlike court decisions, which often grant judgment in the form of a monetary payment, in ADR the parties have a greater range of options. Sometimes an aggrieved party may be simply seeking an apology or an acknowledgement that his/her actions were right. In other cases, one party may want to maintain the relationship while having a discrete issue addressed, which is easier to accomplish in an informal ADR atmosphere than in an adversarial process that pitches one party against another.

4.     Privacy and maintaining relationships

Another advantage of using ADR is that the situation giving rise to the dispute, the conflict resolution process, and the outcome all remain private and confidential between the parties and any decision maker. Typically, the decision-maker will require all participants to sign a confidentiality agreement. Privacy may be an important factor when there are claims that could significantly harm one party’s image and reputation, e.g. allegations of fraud, sexual harassment. With a private ADR resolution, the parties avoid being publicly convicted and may even agree to a no-fault settlement.

The ability to privately and quietly resolve a conflict allows parties to maintain their relationship if that is one of their goals.

When a Trial May be Preferable to ADR

ADR is not suitable for every legal dispute. Disputes involving the interpretation of a new statute or provision, the application of the Charter and Constitutional rights, and other public interest litigation require a public ruling to establish a precedent. Class actions may require litigation in order to ensure that all plaintiffs receive an equivalent remedy, rather than separate and inconsistent results. A trial is also preferable in situations where the defendant is being sanctioned, its conduct is condemned, and deterrence is a goal.[4] 

About the Author - What is ADR

Rhema - Legal Dispute Blogger

Rhema Kang is a litigation lawyer. She graduated with an Honours Bachelor of Arts from the University of Toronto in International Relations, and Juris Doctor from the University of Ottawa. She first became excited about mediation while working for the Honourable George W. Adams, a prominent Canadian mediator who handles legal disputes worth up to several hundred million dollars. Rhema was the researcher behind the book, Mediating Justice: Legal Dispute Negotiations, and won second prize in the FMC Negotiation Competition. Rhema enjoys dark chocolate with sea salt and finds it awkward to write about herself in the third person.

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[1] Robert M Ackerman, “Vanishing Trial, Vanishing Community? The Potential Effect of the Vanishing Trial on America’s Social Capital” (2006) J Disp Resol165.

[2] Frank E.A. Sander and Stephen B. Goldberg, “Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure” Negotiation Journal (1994) 49 at 56.

[3] George W. Adams, Mediating Justice: Legal Dispute Negotiations, 2d ed (Toronto: CCH Canadian Limited, 2011).

[4] Sander and Goldberg at 60.