You are here: Home › Selecting-the-Right-Process

How To Select The Appropriate Dispute Resolution Method:
Litigation, Arbitration OR Mediation

"Traditional litigation is a mistake that must be corrected... For some disputes trials will be the only means, but for many claims trial by adversarial contest must in time go the way of the ancient trial by battle... Our system is too costly, too painful, too destructive, too inefficient for really civilized people."

Chief Justice Warren E. Burger of the U.S. Supreme Court.

Clients today, whether individual or corporate, are looking for options to resolve their disputes. Here are some criteria which may be helpful to you in the selecting the appropriate method or process for the dispute in question.

Consider Litigation If:

  • The parties have no real interest in settlement.
  • There are conflicts of values at issue.
  • You need injunctive relief to preserve rights or property.
  • Your client requires a public forum for vindication.
  • You require set rules and procedures to present your case.
  • There is a need to set a precedent or the case is of public concern.
  • You are close to end of limitation time limits which could lead to a loss of rights.
  • The specific issue can be submitted to a particular judge.
  • You need to preserve appeal rights.

Against Choosing Litigation:

  • Lengthy formal proceedings.
  • You need confidentiality.
  • The costs are out of proportion to the issues at stake.
  • You are uncertain over whether a judge will understand the substance of the dispute or whether he or she has time to learn about the dispute because of a heavy case load.
  • The parties come from different jurisdictions, cultures or speak languages other than the one used by the court.
  • The possible delay by appeals.

Consider ADR Because:

  • ADR motivates the parties and their counsel to prepare for resolution.
  • Clients have "their day in court," and can work from their sense of a "fair" resolution.
  • The parties have the opportunity to consider the other side' case.
  • The parties can identify common interests, points of agreement, and work on mutually acceptable settlement options to the dispute.
  • Cost.
  • Speed.
ADR processes differ in their formality and placement of decision-making power. In mediation, the decision-making power will reside at all times with the parties while in arbitration, the third party neutral arbitrator hears the case and makes the decision.

Consider Arbitration If:

  • The court setting lacks specific expert knowledge of the subject area.
  • It is an inter- jurisdictional dispute.
  • You require rules of procedure.
  • The parties are familiar with arbitration.
  • You want to set a specific process for the case.
  • Expert, knowledgeable arbitrators can be selected.
  • You need the option of be able to jointly replace an arbitrator.
  • You want choice of location for hearing.
  • You require a full substitute for litigation.

Against Arbitration:

  • Good quality of judicial appointments.
  • Parties are in the same jurisdiction.
  • The issues are not arbitrable.
  • Rights of non-parties are affected by outcome.
  • Easily mistaken for litigation.
  • Difficulty in selecting arbitrators.
  • Restricted rights of appeal.
  • Dispute cannot be kept confidential if there is an appeal.

Consider Mediation If:

  • The parties want to settle.
  • There is a need for prompt resolution due to external pressure to settle such as time, money or unpredictable outcomes.
  • The parties have an on-going relationship and/or the possibility of future dealings.
  • Common interests exist.
  • There is a history of cooperation and successful problem solving.
  • Confidentiality is important.
  • You want the opportunity to consider the issues outside the traditional legal framework.
  • The parties need a commercial solution which could not be obtained through litigation or arbitration.
  • The dispute centres is about the parties relationship as well as economic issues.
  • You have no is no concern about limitation periods expiring.
  • The parties are only considering litigation or arbitration because they have reached an impasse in negotiations.
  • Because mediation is fast, relatively inexpensive and always allows the option of walking away and commencing litigation or arbitration
  • The parties want full control of their dispute.
  • The parties want or need to design the process.

Against Mediation:

  • There is a significant power imbalance against your client.
  • The other party or counsel is abusive personality.
  • It could be a fishing expedition or disguised examination for discovery.
  • The other side just wants to delay.
  • There are third party rights affected.
  • It can be difficult to judge competency of mediator.

While Arbitration and mediation are the most common form of ADR, there are also many hybrid processes which can be crafted to the individual dispute.

For further information, please contact us.