ADR: BEFORE, DURING AND AFTER COURT; MEDIATION & CONCILIATION

Oluwatodimu Emmanuel Adeleke Esq, ACArb.

One can use alternative dispute resolution (ADR) at any time during a dispute. Participating in ADR may be voluntary, court ordered or required by the term of a contract.

ADR Before Starting a Case

One might want to attempt ADR to avoid the expense of starting a case. If One do not resolve the dispute through ADR, one can still go to a court or tribunal, although One should get information about any time limits that apply.

As well as choosing to use ADR, one might be required to take part in ADR before One start a case. In family law parenting disputes, for example, most people are required to attend family dispute resolution before they are allowed to start a court case.

Another situation in which One might have to try ADR first is where the dispute is about a contract that contains a ‘dispute resolution clause’. This is a clause that states the parties to the contract must, if there is a dispute, try to negotiate or use a certain type of ADR. These kinds of clauses are common in commercial, employment and some consumer contracts.

ADR During Court or Tribunal Proceedings

One can choose to take part in ADR at any time, including after One have started the case. If One would like to try ADR, one could start by asking the other people involved in the dispute to take part or by contacting an ADR service provider to discuss which steps to take next.

ADR After the Court or Tribunal Decides

One can also choose to arrange ADR after the court or tribunal has made a decision. One reason to consider this is if one or more of the parties is considering appealing the decision.

Another is where circumstances change and further issues arise after the decision. In this case One might want to try ADR before going back to the court or tribunal.

In some cases, the court or tribunal may encourage or require One to attend ADR if a party has started appeal proceedings

CONCILIATION

Conciliation is an ADR process where an independent third party, the conciliator, helps people in a dispute to identify the disputed issues, develop options, consider alternatives and try to reach an agreement. 

A conciliator may have professional expertise in the subject matter in dispute and will generally provide advice about the issues and options for resolution. However, a conciliator will not make a judgment or decision about the dispute.

Conciliation may be voluntary, court ordered or required as part of a contract. It is often part of a court or government agency process.

About The Conciliation Process

The role of conciliators is similar to that of mediators except that the conciliator may also:

Have specialist knowledge and give you some legal information

Suggest or give you and the other participants expert advice on the possible options for sorting out the issues in your dispute actively encourage you and the other participants to reach an agreement.

The conciliator will not:

Take sides or make decisions tell you what decision to make, although they may make suggestions decide who is right or wrong provide counselling.

Conciliation is usually held face to face, so that you can talk to each other directly. However, you may also have separate sessions with the conciliator.

Sometimes the conciliator can act as a ‘messenger’ by talking to you and the other participants separately and communicating ideas or proposals between you. It is also possible to hold conciliation sessions by telephone in some circumstances.

When is conciliation suitable?

Conciliation is likely to be suitable if One:

• Want to reach an agreement on some technical and legal issues
• Want assistance with the process
• Want to make the decision with the other participants involved
• Want advice on the facts in your dispute.
• Conciliation may also be suitable if you have tried mediation and still cannot reach agreement with the other participants.

What role do lawyers or experts play?

The participants’ lawyers can usually be present during conciliation. In some cases, experts may also be present. Some conciliation processes do not require lawyers to participate. If you wish to have your lawyer participate in a conciliation process or have experts attend, you should discuss this with the conciliator before the process begins

MEDIATION

Mediation is an ADR process where an independent third party, the mediator, assists the people in dispute to identify the disputed issues, develop options, consider alternatives and try to reach an agreement.

However, the mediator does not give their advice or opinion about the issues or have any role in deciding the outcome of the mediation.

About the mediation process

A mediation session is usually a structured, face-to-face meeting with all the people in dispute and one or more mediators.

At mediation, one will generally be asked to talk directly to the others involved in the dispute and may also have separate sessions with the mediator. There will usually be breaks for each person to reflect on the discussion and get advice or support if they need it.

Mediation may be voluntary, court ordered or required as part of a contract. It may also be part of a court or government agency process.

Role of the mediator

The mediator will:

• Explain the mediation process and set the guidelines for how it will work
• Ensure each person has a chance to talk, be heard and respond to the issues
• keep everyone focused on communicating and resolving the dispute
• ask questions to help people identify and communicate about what their goals and desires are and why they feel that way
• help clarify the issues and suggest ways of discussing the dispute
• help the people in dispute develop options and consider whether possible solutions are realistic
• try to assist the parties reach an agreement where appropriate and make sure everyone understands any agreement reached
• refer one to other helpful services if required

The mediator will not:

• Take sides, make decisions or suggest solutions – this is for one and the other participants to do
• tell you what you should agree to do – you decide what to do, including whether to stay at mediation
• decide who is right or wrong – the focus is on finding a solution that everyone can live with, not making a judgment
• give legal, financial or other expert advice –  you can get advice before, during and after mediation if you choose
• provide counselling – you can get counselling or other support before, during and after mediation if you choose.

While most mediation sessions are held face-to-face, in some circumstances sessions can be held over the telephone. Another option is shuttle mediation, where the people in dispute sit in separate rooms and the mediator speaks to them separately and acts as a messenger between them.

When is mediation suitable?

Mediation may be suitable if one:

• Feel comfortable and safe having a conversation with the others involved
• Want a third person to assist the discussion
• want to make the decision yourselves
• want to maintain the best possible ongoing relationship with the other participants
• want to control the outcome, rather than ask someone else to decide the outcome
• want to keep discussions confidential
• want to find innovative solutions to a problem

Mediation may be unsuitable if:

One does not feel safe when communicating with the other participants, there is a power imbalance that means one or more of the participants is not able to participate equally in the process and negotiate on their own behalf effectively.

Mediators can help you decide whether mediation is suitable in your situation. They can also bring the appropriate people together, provide a supportive environment and help organise a time and venue. Mediators may also discontinue mediation if they feel it is no longer appropriate to mediate.

Before mediation, you can get expert advice to prepare for the session, for example by getting legal advice on your rights and responsibilities and what alternatives are available if you do not negotiate an agreement.

If all the participants agree, mediation may also involve support people, your lawyer or other professionals.

The role of lawyers in mediation will usually depend on the type of case. For example, in disputes between individuals such as neighbours, there will be many types of issues to resolve that are not just about legal rights. In these type of cases, mediation generally works better when it is an informal process without lawyers attending or, if they do attend, just listening but not taking an active role.

For large or complicated disputes that involve mainly legal issues, it is more common to have lawyers present and involved in the mediation process, although the focus remains on the people in dispute communicating about the issues and working towards a resolution.