 Hello, it's Wayne LeCiao and welcome to Dispute Resolution Part B. In this part, we'll look at methods of dispute resolution outside of court litigation, specifically administrative tribunals and the various methods of alternative dispute resolution. Generally speaking, disputes between private parties are resolved by resorting to the public court system, which we've already looked at. Now, for some particular types of disputes, they are required by the relevant statute to be resolved by a specific administrative tribunal. Administrative tribunals are similar to courts, or in other words, they are considered to be quasi-judicial, in that they can hear witnesses like a court, they can receive and consider evidence just like a court, and they also provide decisions based on written reasons prepared by the tribunal. Now, there are some key differences between tribunals and courts. The rules and procedures for administrative tribunals are usually less formal and more flexible than those of courts, and the rules of evidence that courts apply, which sometimes are very strict such as the rule against hearsay, may not apply in an administrative tribunal. And also tribunal members are not necessarily judges or lawyers, but they are usually people with specific expertise in the relevant area. Here are some examples of administrative tribunals which are relevant to business. For each tribunal, there are excerpts from their websites which describe what those tribunals do. For the competition tribunal, it administers the Competition Act, specifically the various offenses that are under the Competition Act, such as anti-competitive practices including price fixing and also deceptive marketing practices. The Human Rights Tribunal of Ontario deals with complaints under the Human Rights Code of Ontario, and the OSC, or the Ontario Securities Commission, investigates and adjudicates sanctions or offenses under securities law in Ontario. The Canadian International Trade Tribunal, or CITT, deals with matters involving international trade, for example, anti-dumping, customs and excise, and import tariffs. The WSIB is the Workplace Safety and Insurance Board. It deals with claims by injured workers when they are injured at the workplace. We already know from earlier in this module that court litigation is for many reasons uncertain, lengthy and costly. So that raises the question, is there a better way of resolving a dispute other than going through the court system? There is something called Alternative Dispute Resolution, or ADR, for short. The definition is any process that allows parties to resolve a dispute without going to court. So ADR is not necessarily better than court litigation. Sometimes it is, sometimes it's not. It depends. So let's look at it in more detail. Here are the four methods of dispute resolution covered in this module. We've already looked at in detail litigation, which is suing with a civil lawsuit in the public court system. The other methods are considered to be ADR, or Alternative Dispute Resolution. Negotiation is just simply where there are discussions between the parties involved with the aim of resolving a dispute. So it's the parties on their own negotiating a resolution to their dispute. The next form of ADR is mediation. This is where a neutral third party, or someone called a mediator, gets involved to help the parties reach an agreement in order to resolve a dispute. And the last method of ADR is called arbitration. This also involves a neutral third party. Now it's called an arbitrator. The arbitrator listens to both parties and then imposes a decision on the parties in order to resolve a dispute. Let's compare the four different methods of dispute resolution. The first criteria is quick and inexpensive. The court litigation process, as we've looked at already in detail in this module, can take many years due to the many steps involved in a lawsuit such as discovery. And also the public court system is quite often backlogged. It may take quite a bit of time to get a court date, for example, for a trial. And during that long process significant legal fees can be incurred because the process is fairly technical. It is highly recommended that legal counsel be retained for court litigation. Now there is the exception, however, with small claims court. With small claims court it is designed to be quicker and less expensive than usual court litigation. And there's also not necessarily the, or you're not necessarily required or you don't necessarily need a lawyer or paralegal when you're going to small claims court. With negotiation, negotiate between the parties is usually the quickest and cheapest way to resolve a dispute. You're not involving any lawyers and it's just, as we've described before, negotiation is just a discussion between the parties involved and they work out the dispute on their own. The other methods of ADR, mediation and arbitration may also be quicker and less expensive than litigation, due to the fact that it involves a private process as opposed to a public one. So the parties involved have full control over the process and therefore it's likely to be faster than litigation. And also the procedures for mediation and arbitration are usually much simpler than the procedures required in court litigation. With regard to the parties selecting the decision maker, in litigation the parties do not control how judges are assigned to cases. And also whoever the judge might happen to be, the judge may not have any particular expertise in the subject matter under dispute. In a mediation arbitration, however, the parties usually mutually choose the mediator or arbitrator and that person often has expertise in the particular subject matter. One thing to keep in mind is that contracts often contain an arbitration clause and that clause will require disputes under the contract to be resolved by arbitration instead of litigation. Now, some companies use arbitration clauses in consumer contracts to avoid being sued in class actions and also to avoid being sued in small claims court. Now, one thing to keep in mind is that even if a consumer contract has an arbitration clause like that in certain provinces, including Ontario, arbitration clauses in consumer agreements are invalid. So even with an arbitration clause like that, if you have a contract as a consumer, you always have a right to sue in court, either small claims court or superior court and also including a class action. The next criteria is who controls the outcome, do the parties themselves control the outcome in terms of resolving the dispute. In litigation arbitration, the judge or arbitrator as the case may be imposes a binding decision on the parties. With negotiation and mediation, the objective there is to having the parties come to an agreement to resolve the dispute. So it's really up to the parties to come to an agreement. And if they can't, they can't, then there is no resolution under negotiation or mediation. And where a mediator is involved, the role of the mediator is to try to facilitate a settlement between the parties, but the mediator himself or herself cannot impose any kind of decision on the parties. In many situations involving a dispute, especially a dispute between two businesses, it may be highly advantageous to be able to maintain an ongoing relationship, ongoing business relationship between the two parties despite the fact of the dispute between the parties. Now with the litigation process, it tends to be very adversarial and because of that, it's not conducive to maintaining an ongoing relationship between the parties. With arbitration, it does tend to be less adversarial because it involves a mutually agreed upon binding process to resolve a dispute, but arbitration itself can still be adversarial. Now with mediation and negotiation, since it involves the parties coming to an agreement, and if they do come to an agreement, they are much more likely to maintain an ongoing relationship between the parties. The next criteria in resolving the dispute, does the dispute remain confidential and or are the details of the dispute confidential? Litigation is a public process which inherently exposes a dispute to public view. When you start a lawsuit, it becomes public knowledge. With negotiation, mediation and arbitration, those ADR methods, those are all private processes. So confidentiality may be preferable if you want to protect the privacy of the individuals involved or protect the reputation of the business that's involved in a dispute. However, confidentiality may be undesirable if, for example, you have a consumer involved in a dispute and the consumer wants to gain an advantage to obtain a favorable settlement by publicly exposing the defective product or a bad business practice. The resolution of disputes by court litigation or the various methods of ADR that we've talked about usually focuses on monetary liability. In other words, who owes my toe and how much money is owed. What that disregards is a human element where sometimes just receiving an apology is enough to resolve a dispute. But the problem is that defendants are usually very reluctant to apologize for fear of admitting legal responsibility and liability in any particular situation. Now to address that problem, in Ontario and in a number of other provinces, there is legislation in Ontario, it's called the Apology Act where an apology, the making of an apology does not constitute an admission of fault or liability. So it frees up someone who might be sued, frees them up with the ability to say sorry to someone without fear of having that being used against them later on in a lawsuit as being an admission of liability. An apology is defined in the Apology Act as an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration.