ADR works to keep disputes out of the courtroom: Rudner
By Paul Russell, AdvocateDaily.com Contributor
Most disputes arising out of the workplace can be settled efficiently through an alternative dispute resolution (ADR) process rather than the courts, Toronto employment lawyer and mediator Stuart Rudner tells AdvocateDaily.com.
"People often complain about our civil litigation system when it comes to addressing disputes in the employment law context," says Rudner, founder of Rudner Law.
"People are frustrated that it takes a long time to have a claim adjudicated, that the process is often unnecessarily complex, and includes steps that are not always necessary. Plus, you don’t know if the judge you get will be versed in employment law," he says.
"There is a reason that more than 97 per cent of civil claims settle — the cost, delays, and risks render it prohibitive.”
The parties can use ADR to design a process customized to the dispute in question.
“While a complex case, such as those involving allegations of just cause for dismissal, or harassment, may require extensive discovery, a more straight-forward notice case will not," Rudner says. "The parties can agree on the extent of documentary and oral discovery, when the mediation will take place, and the extent of viva voce evidence at the hearing. One size does not fit all.”
He says another key advantage of ADR is that the parties can “pick their judge” — the arbitrator — rather than having one assigned to the matter right before trial. Also, taking the dispute out of the public system ensures confidentiality, which most parties prefer, he says.
An additional benefit is that mediation effectively stops the clock in terms of the limitation period to start litigation, Rudner says, explaining the typical limitation period for civil claims is two years.
"If the parties agree to mediate, that buys them time before they have to file a claim," he says. "Some lawyers don’t even know about this benefit."
In many Ontario jurisdictions, parties involved in an employment dispute must go through mediation before their case will be heard in court, Rudner says. In areas where it is not mandatory, the sides should still mediate, or risk having the judge penalize them for not taking this step, he suggests.
Rudner cites an Ontario Superior Court of Justice case, where a plaintiff’s award was increased by approximately $20,000 due to the other party’s refusal to go through mediation.
"The defendant’s refusal to mediate was a relevant factor," the judge wrote in his decision. "That refusal was unreasonable. It deprived the parties of an opportunity to settle the case without the necessity for a trial."
If mediation fails, arbitration can be the next step in the ADR process, says Rudner, who has mediated a significant number of cases with a high rate of success, and also arbitrated multiple cases.
He is seeing an increased interest in the med-arb process, which combines the two. The key, Rudner says, is working with counsel to design the right process for each matter.
"In many cases, a 'med-arb' procedure is particularly effective," he says, adding that "by combining the two, the parties know that one way or another, they will have finality."
Rudner says with med-arb, the meditator is also the arbitrator, and has the power to render a decision on the dispute should the parties be unable to reach one through mediation.
One unique approach with med-arb is to hold the formal arbitration hearing first, he says. The arbitrator reaches a decision at the end but keeps the findings secret in a sealed envelope placed in plain view of the disputing parties.
As the two sides mediate, "They both will be staring at this envelope, knowing that if they don’t reach a resolution, the arbitrator will open that envelope and reveal their decision," Rudner says. "That can create drama and tension, but it also creates a real incentive for the parties to settle."
He said one reason people choose to do the arbitration first is that information released in the mediation is supposed to be confidential.
"If you mediate first, the mediator will learn a great deal about the case. When they become the arbitrator, it can be difficult for them to change roles and be the judge when they've heard all these things they probably should not be aware of when rendering a decision," says Rudner, who recommends to his corporate clients that all employment agreements include ADR clauses that specify disputes will be dealt with through either mediation, arbitration, or both.
"Either way, they can take the dispute out of the court process, although you have to be sure the ADR clause is drafted in a way that the court will not throw it out," he says, alluding to the recent case involving a global ride-share company.