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Matching method to dispute key in online ADR

Alternative dispute resolution (ADR) is all about matching the process to the conflict — and as technology has grown more sophisticated, online options have become easier to customize, Toronto mediator and commercial arbitrator Marvin Huberman tells Canadian Lawyer.

As the article notes, British Columbia is set to launch Canada’s first government-sponsored online dispute resolution (ODR) forum, driven by cost efficiencies and access to justice. At launch, B.C.’s Civil Resolution Tribunal (CRT) will only handle condominium disputes — which generally cost $25,000 to $35,000 to take to trial. Through the CRT, it will cost $200 to file and lawyers are optional, reports Canadian Lawyer.

“If all goes well, they will accept small claims cases around February 2017. The process will be predominantly online, despite arguments that viva-voce evidence and demeanour in court are an integral part of the test of veracity,” says the article.

Canadian Lawyer reports that Quebec and Ontario are watching the launch, as they are close to launching their own versions. Ontario, in particular, is investigating ODR as an option for dealing with conflicts through the Condominium Authority Tribunal, which was created under the Protecting Condominium Owners Act, 2015.

However, as the article notes, while some stakeholders say the existing private ADR process is too expensive, a more affordable process “will attract more litigants with more disputes.”

As Huberman says in the article, “Some also argue there are segments of the population, the poor, those who don’t speak English well, are uneducated, or even the elderly who don’t know how to use the computer, while others say the learning curve isn’t steep and it can be done. The key issue for me is what cases are appropriate. ADR really means ‘appropriate dispute resolution.’”

Most important, he says, is matching the process to the dispute.

“I go by the three Ps. We have the people, the problem, the nature of the dispute, and the process, whether it’s mediation, negotiation, arbitration, or litigation. Then there are hybrids such as med-arb, which might work in a particular case.”

As technology provides an even more sophisticated means of communication and interaction, it is easy to tailor an online process accordingly, Huberman says in the article.

At the same time, he says, video conferencing through Skype or other services is already being used in arbitration cases where witnesses can’t get to a hearing, so there is a natural progression. For example, adds Huberman, eBay resolves millions of cases between vendors and buyers using an ODR process.

Ultimately, says Huberman, this is more than a “nice-to-have” option.

“The Law Society of Upper Canada Rules of Professional Conduct impose a duty on a lawyer to explore ADR as an option as appropriate in every case. A lawyer must discuss the ADR options with the client. It’s not just a good thing to do, it’s a must do.”

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