FAQs: Become Part of the ADR Process
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As a professional body and a regional affiliate of ADR Institute of Canada, the ADRBC represents trained, experienced and accredited practitioners of mediation and arbitration throughout British Columbia. The ADRBC serves its membership by providing a referral and appointment service, training opportunities in Alternative Dispute Resolution (ADR) and recognized professional accreditation. It serves consumers of ADR services by appointing qualified and knowledgeable arbitrators and mediators, holding its membership to a code of ethics and standards of practice, and providing an avenue of redress should standards of practice fall below a certain standard.
As Alternative Dispute Resolution increases in prominence in Canada, many organizations are realizing they can resolve disputes through processes other than litigation. They are also finding that traditional methods of resolving internal conflicts are not necessarily the most effective or satisfactory. As a result, a field known as “ADR Systems Design” has emerged. ADR Systems Design is designing conflict management systems for organizations so that when disputes arise, they can be resolved through the most appropriate dispute resolution processes. ADR Systems Design consultants work with managers, in-house lawyers, human resource personnel and others in organizations to determine – before conflicts arise – which processes should be made available to employees, customers and those with whom the organizations are in dispute, as conflict occurs.
The ADRBC can assist organizations in finding ADR Systems Design consultants appropriate to their needs.
Section I of the National Arbitration Rules contains a Model Dispute Resolution Clause; Section II provides parties with the flexibility to agree to modify the rules as required.
The National Mediation Rules prescribe the process for initiating mediations, including appointment of a mediator should the parties be unable to come to an agreement. This document contains the Mediation Rules, a Model Code of Conduct and a Standard Form Agreement to Mediate (Schedule B).
The National Mediation Rules provide rules for initiating mediations including appointment of a mediator should the parties be unable to come to an agreement.
The Mediation Rules document contains the following:
- Mediation Rules
- Model Code of Conduct
- Standard Form Agreement to Mediate (Schedule B)
- Administration fees payable to the Institute – see Schedule A of the Rules
The Model Dispute Resolution Clause set out below is of particular importance to those drafting or entering into contracts. Commercial contracts drafted by law firms of all sizes across the Canada commonly contain a clause indicating that any dispute that arises with respect to the contract will be administered by ADR Canada, or one of its affiliates, pursuant to the National Mediation Rules or the National Arbitration Rules of the ADR Institute of Canada.
Section I of the National Mediation Rules provides a Model Dispute Resolution Clause for Mediation and /or Arbitration.
All disputes arising out of or in connection with this agreement, or in respect of any legal relationship associated with or derived from this agreement, shall be mediated pursuant to the National Mediation Rules of the ADR Institute of Canada, Inc. The place of mediation shall be [specify City and Province of Canada]. The language of the mediation shall be English or French [specify language].
Section II provides a Model Dispute Resolution Clause – Mediation and Arbitration.
All disputes arising out of or in connection with this agreement, or in respect of any legal relationship associated with or derived from this agreement, shall first be mediated pursuant to the National Mediation Rules of the ADR Institute of Canada, Inc. Despite this agreement to mediate, a party may apply to a court of competent jurisdiction or other competent authority for interim measures of protection at any time. All disputes remaining unsettled after mediation shall be arbitrated and finally resolved pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. [the Simplified Arbitration Rules of the ADR Institute of Canada, Inc.]. The place of mediation and arbitration shall be [specify City and Province of Canada]. The language of the mediation and arbitration shall be English or French [specify language].
ADRBC encourages parties to contracts to add the following arbitration clause:
All disputes arising out of or in connection with this agreement, or in respect of any legal relationship associated with or derived from this agreement, will be administered by the ADR Institute of British Columbia and be finally resolved by a single arbitrator. The place of arbitration shall be [specify City and Province of Canada]. The language of the arbitration shall be [specify language].
Sample Arbitration Clauses
a. Any dispute, controversy or claims arising out of or relating to this contract or the breach or termination thereof shall be settled by a single arbitrator under the Rules of the ADR Institute of British Columbia; the hearing shall be held in British Columbia.
b. Any dispute, controversy or claims arising out of or relating to this contract or the breach or termination thereof shall be settled by arbitration under the Rules of the ADR Institute of British Columbia with three arbitrators. Each party shall appoint one arbitrator. The third arbitrator shall be appointed by the ADR Institute of British Columbia. The hearing shall be held in British Columbia.
c. All disputes arising out of or in connection with this contract, or in respect of any defined legal relationship associated herewith or derived therefrom, shall be referred to and finally resolved by arbitration in accordance with the arbitration rules of the ADR Institute of British Columbia. The appointing authority shall be the ADR Institute of British Columbia. The case shall be administered by the ADR Institute of British Columbia in accordance with its arbitration rules. The place of arbitration shall be Vancouver, or, if agreed to between the parties, any other location in the province of British Columbia.
a. If a dispute arises out of or relates to this contract, or the breach thereof, and the dispute cannot be settled by negotiations between the parties, the parties agree first to try in good faith to settle the dispute by mediation administered by the ADR Institute of British Columbia under its mediation rules before resorting to arbitration, litigation or some other dispute resolution procedure.
Clearly a genuine fear exists on the part of lawyers that the use of ADR is a threat to their litigation practices. The desire of the clients to reduce costs will reduce their expenditures on litigation in any event. Lawyers are demonstrating a recognition of this reality by undertaking training in ADR and establishing ADR sections within their firms. The reality also is that disputes will continue to exist and those law firms that are responsive to the needs of clients and which contribute to the early resolution of disputes and cost savings, are most likely to be engaged in the handling of more of the work flowing from satisfied clients. Confirmation of this analysis is obtained in the CPR “1995 Law Firm Practices in ADR” survey of 124 law firms. The response rate was 51%, and it revealed an extensive array of ADR activity. The findings of the survey indicate that among firms that had formally organized their ADR activity, 37% reported gaining new clients or gaining new business from existing clients as a result of ADR expertise. Only 2% of those firms who did not report formal organization of ADR efforts reported such gains.