Dispute Resolution Process
Disputes can be resolved informally – by a handshake or preferably a written agreement to settle. They can be resolved slightly more formally through some mediated form of alternate dispute resolution. Finally disputes can be adjudicated and decided formally through the courts or an arbitration process. The following will help to explain the typical path you can expect to follow when involved in resolving a dispute.
What Is Dispute Resolution?
Dispute resolution is a term that refers to a number of processes that can be used to resolve a conflict, dispute or claim. Dispute resolution may also be referred to as alternative dispute resolution, appropriate dispute resolution, or ADR for short. Dispute resolution processes are alternatives to having a court decide the dispute in a trial or other institutions (e.g. – arbitrators) decide the resolution of the case or contract. Dispute resolution processes can be used to resolve any type of dispute including family, neighborhood, employment, business, housing, personal injury, consumer, and environmental disputes.
Arbitrators – arbitrators usually make binding decisions, outside of court. Arbitration is often used for commercial, contractual and labour relations situations. While less costly than courts, they can still be expensive for most disputes we are involved with. The Housing
Why Use Dispute Resolution?
Alternate dispute resolution processes have several advantages. For instance, many dispute resolution processes are cheaper and faster than the traditional legal process. Certain processes can provide the parties involved with greater participation in reaching a solution, as well as more control over the outcome of the dispute. In addition, dispute resolution processes are less formal and have more flexible rules than the trial court.
For many elder law issues involving older adults and their family members or close friends, the older adult (and likely other family members) would prefer a less formal resolution to the issue than the adversarial process in court and the ‘zero-sum’ game result of a formal judgment.
Do I Need an Lawyer to Participate in Dispute Resolution?
In many processes, you are not required to have a lawyer to participate. In cases where the court or judge has referred the case to a dispute resolution process, lawyers often participate. The role of a lawyer in a dispute resolution process varies depending upon the nature of the dispute and the type of dispute resolution process. In many dispute resolution processes, lawyers accompany their clients and participate either as counselors or as advocates.
For more information on types of dispute resolution, and how dispute resolution it might help, see the CBA ‘Legal Health Check’ fact sheet on “Resolving Everyday Conflicts.”
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Mediation is one form of dispute resolution that doesn’t involve an adjudication by a decision maker. The term mediate derives from the Latin ‘mediare’ – in the middle. It can be described as:
a process by which an impartial third party meets with the parties to a dispute in order to help them settle their differences.
From the BC Law Institute Report – Elder and Guardianship Mediation 2012.
Elder mediation is a relatively new and growing form of mediation practice. It can be understood as:
Elder mediation may be understood as the mediation of disputes arising in the context of aging. One or more of the parties will be an older adult or the issues in dispute will be ones of particular significance to older adults: e.g., estate planning, powers of attorney, caregivers (who, when, where, how much care, respite care, etc.), lifestyle choices, independence and self-determination vs. safety concerns. The issues and parties are often intra-familial, but can involve third parties such as housing providers. Elder mediation tends to be multi-partite and involve family and inter-generational dynamics. It requires a particular degree of sensitivity and skill on the part of mediators.
From the BC Law Institute Report – Elder and Guardianship Mediation 2012.
Aspects of Elder Mediation
- A cooperative, compassionate process
- Respect of elder’s wishes and dignity
- Everyone has equal opportunity to share thoughts and concerns and desires
- Allows for skillful resolution of emotionally challenging issues
- Is a safe place for siblings and family members to express differing opinions
- Provides an opportunity to learn about legal, medical, financial, and other options from outside professionals, as needed
From a presentation by Kathryn Sainty, QC of Sainty Law to the CBA Elder Law Section May 18, 2016
Elder Mediation – Areas
The range of areas in which voluntary elder mediation may take place is constantly expanding, and includes:
- Estate planning, administration and succession planning
- Powers of attorney (who will make decisions and how)
- Advance directives and end-of-life care
- Adult guardianship and alternatives to adult guardianship options including increased support services
- Assisted living or long-term care
- Types of medical care and alternative health care options
- Private Care Agreements
- Caregiver issues (who, when, where, how much, respite care, etc.)
- Lifestyle choices (i.e. subsequent marriage, smoking, alcohol use, social activities,vacations)
- Independence and self-determination vs. safety issues
- Mental illness or dementia
- Abuse, neglect or self-neglect
- Employment related disputes
Issues in Elder Mediation
Because of the high cost of litigation and lawyers, many families in BC are turning to elder mediation to resolve family disputes. A number of issues arise in considering elder law mediation:
- what credentials or training should an elder mediator have?;
- which mediation model is the best for the mediator to use?;
- issues of impartiality, conflicts of interest and confidentiality;
- should non-parties participate in elder mediation sessions?;
- capacity of older adult to mediate or participate in the process;
- existence of abuse/neglect/self-neglect; and,
- how can vulnerable persons be protected from harm in mediation sessions if there is an imbalance of power?
For more on these issues see the BCLI Report Elder and Guardianship Mediation
Mediate BC provides ‘civil mediation’ (defined by them as mediation of any kind of dispute except for “family”, Child Protection and criminal matters). It can be used for a very wide range of conflicts including disputes between neighbours, workplace conflict, commercial and business disputes etc.
Mediate BC’s Court Mediation Program offers free mediation in five registries of the Provincial Court of BC. Click here for more information.
Dispute Resolution Office
The Ministry of Justice’s Dispute Resolution Office (DRO) develops and implements dispute resolution services. Their website includes a webpage that is a Guide to Mediation in BC.
Civil Resolution Tribunal
The Civil Resolution Tribunal (“CRT”) will provide an online forum for the resolution of a wide variety of strata property disputes and small claims matters when it is operational in 2016/17. The CRT will become the first step for people with small claims and many types of strata disputes. People will have, however, the right to request that a court hear their matter.
The CRT will encourage people to use a broad range of collaborative dispute resolution tools to resolve their disputes as early as possible, while still preserving adjudication as a last resort. It is intended to encourage a collaborative, problem-solving approach to dispute resolution, rather than the traditional adversarial litigation model.
Collaborative Elder Law
The concept of ‘collaborative elder law’ is even more recent than elder law mediation. Similar to collaborative family law, it shares the following aspects:
- the parties have lawyers, but agree to keep the matter outside the court system if at all possible;
- the parties sign a ‘participation agreement’ which binds each of the parties to the good faith process;
- the parties agree in this document to voluntary disclosure of all relevant documentation;
- the parties lawyers are disqualified from representing any of them in any future litigation on the same matter; and,
- experts such as geriatric psychiatrists, accountants, etc. may be engaged jointly or individually to aid in coming to a mutually acceptable resolution of the dispute.
This use of specialists, without duplication of efforts can result in cost savings. Agreeing to keep the matter out of court if at all possible, and to share all relevant information and documents can also mean substantial savings.
With a collaborative approach, all family members can be educated about the different financial and legal options available. Some family members will have differing ideas about how the older adult should be best cared for. In a collaborative setting there is the opportunity for more communication and sharing of information than traditional litigation, so hopefully family harmony can be preserved, conflict and resentment can be minimized if not avoided. The parties will have more control over the process than in court. Most importantly it can provide greater privacy and dignity for the older adult than the litigation route.