ADR, Mediation

ADR mitigates risk, enables custom resolutions: Upenieks

By Rob Lamberti, AdvocateDaily.com Contributor

Relying on mediation to solve disputes rather than litigating in court can save time, money and relationships, says Brampton civil litigator Edwin Upenieks.

Upenieks, partner with Lawrence, Lawrence, Stevenson LLP, says mediation also allows the parties involved to choose their mediator, be less formal, and craft more creative solutions to deal with their issues than a court, where judges are assigned and are generally bound by legislation and precedent.

Another significant benefit is the parties share in the resolution process and that settlements are agreed upon, not imposed, he tells AdvocateDaily.com.

Upenieks has extensive experience in alternative dispute resolution (ADR) involving wills and estates, lawyer-client disputes, real estate and business partnerships. No matter what the issue, he says parties can usually deal with the matter through mediation long before a court needs to be involved.

“If the matter is on a trial list, you don’t know when or if you’re going to be called by the court, so your life, and that of any witnesses, is on hold,” Upenieks says.

Mediators are chosen, costs are shared by the parties involved, and the discussions are quickly brought to the table, he says.

The process also “helps to mitigate risk for those involved because a trial is all in and typically one party wins or is more successful than the other,” Upenieks says. “In mediation, a good resolution is where neither party is happy, but the outcome is well-balanced.

“You can fashion different remedies because it’s not always about just the money,” he says. “The mediator explains that there are risks involved. Often, people know what success looks like, but they don’t always consider the prospects of losing or what that looks like.”

Upenieks says mediation also reduces stress among the parties by staying out of a courtroom and ensuring the discussions and outcome remain confidential.

“If you go through to the trial, you have reasons for the decision, which is a public record, and depending on the case, it may even be reported in the media,” he says.

Third-party experts can also be called upon in mediation, particularly in cases where value needs to be determined, such as inventory, property, shares, or the expected value of resources that haven’t been used yet, such as minerals or ores still in the ground, Upenieks says.

“You have to arrive at a number,” Upenieks says. A growing trend in Ontario both in the court and alternative dispute resolution system is the use of “hot tubbing,” a process developed in Australia where all the involved experts are brought to the table to reach a consensus on values.

Depending on the situation, the mediation process can also preserve relationships among the parties, he says. Because the process is collaborative rather than adversarial, the parties involved work together to reach a solution that has a greater chance of resolving the matter, Upenieks says.

“It may not go back to the way it was, but a business dispute that's resolved with one person being bought out and still able to carry on working in the same industry might be a good result for all parties," he says.

This is the first instalment of a three-part series on the merits of mediating disputes over litigation.

Stay tuned for part two where Upenieks will provide guidance on how to choose a mediator.

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