Overview

As the financial, time, and personal costs of litigation continue to increase, well-informed clients seek new forums for resolving their disputes. Alternate dispute resolution (ADR) has become a hot topic in legal circles and among clients, but requests for such processes can provoke anxiety in counsel who are conscious of a "gap" in practice experience where out-of-court dispute resolution is concerned.

This guide is designed for both litigation specialists and business lawyers/solicitors seeking a better understanding of ADR and of the lawyer's role in these processes. The authors provide a concise and practical examination of the progress of an ADR case from the lawyer's point of view. Issues covered include the decision to seek an ADR process, the selection of an arbitrator, mediator or other neutral, negotiation strategy, settlements and enforcement, the lawyer's professional responsibilities in the context of ADR, and the integration of ADR and litigation practice. Also included are several useful checklists and precedents. Mediation Advocacy is the essential resource for lawyers committed to responding to the needs of their most valued clients.

TopContent Summary

• Informing Clients About Mediation
• Case and Client Assessment
• Selecting the Mediator
• The Lawyer's Preparation for Mediation
• Preparing Clients for Mediation
• Identifying and Overcoming Barriers to Settlement
• The Role of the Lawyer During Mediation
• Final Steps
• Ethics and Professional Responsibility

TopPreface

Current proposals to include mediation or other forms of alternative dispute resolution (ADR) in the civil justice system are causing a revolution in Canadian legal practice. This revolution has been driven by advocates of ADR, and mediation in particular, as a better way to resolve disputes. It has also been driven by the interests of the civil justice system in efficiency, cost-effectiveness, and access to justice. Although apparently a revolution, the use of ADR has evolved slowly in many aspects of commercial activity and in family law matters. It is poised to become a mandatory part of civil justice in Ontario and in other jurisdictions in the future.

Litigation is becoming so costly that it is not accessible to many citizens. Like many other “revolutions”, this one will bring with it a paradigm shift of the ways in which we, as litigation lawyers, are involved in managing and resolving the disputes of our clients. It is very likely that “alternative dispute resolution” will soon become simply “dispute resolution”, and we will apply our advocacy skills to the broader realm of assisting our clients in how best to manage and resolve their disputes.

Mediation is one kind of ADR process and, as we become more sophisticated in our use of these dispute resolution methods, we will learn to make use of a range of techniques with which to assist in the carriage and management of a client's dispute. Although mediation may be appropriate for many disputes, some disputes may be dealt with more effectively by other means, such as arbitration or mini-trial.

This new vista for dispute resolution provides an exciting opportunity for a new kind of litigation lawyer — one who can apply advocacy and analytical skills to a broader spectrum of dispute resolution techniques in the best interests of his or her clients.

We have chosen to focus on a practical approach to advocacy in the context of mediation or facilitated negotiations. We hope that you will appreciate that this different style of advocacy is as effective and in the best interests of your clients as is the more traditional form exemplified by the best trial advocates.

Cinnie Noble
L. Leslie Dizgun
D. Paul Emond