Workplaces are complex environments — and fertile ground for disputes. But courts aren’t the only way to settle disagreements between management and workers when things go south.
Alternative Dispute Resolution (ADR) can be a faster, and easier, method to find amicable solutions without having to appear in front of a judge or a tribunal, according to Stuart Rudner, an employment lawyer and mediator and founder of Rudner Law and Rudner ADR.
Unlike in cases involving ongoing relationships, where interpersonal issues might be mediated over several sessions as discussed in a recent article, disputes between parties that are no longer in a relationship, such as wrongful dismissal claims, are not concerned with maintaining a positive relationship; they are solely focussed on resolving the dispute so everyone can move on.
“In a dispute resolution, you’re not trying to repair the relationship — that relationship is over,” he said. “Because of that fact, there are a lot more threats, either implicit or explicit. You know, ‘If you don’t settle, here’s what the other side is going to do and here’s what you have to deal with.’”
Better than BATNA?
Rudner discussed the concept of BATNA, or the “Best Alternative to a Negotiated Agreement,” a common term used in negotiations.
“You’re always looking at whether a potential resolution is better than your BATNA” he said.
This comparison can often guide parties as to whether proceeding with arbitration or litigation would yield a more favorable outcome compared to settling during mediation, he said.
One hearing is typical
Dispute resolution processes are often tailored to the specific circumstances of a particular case.
“The far more common one, and the one that I’m typically involved in, is where there is a legal dispute — either a court action has been started or at least threatened,” he said. In such situations, both parties usually have legal representation, and Rudner acts as a third-party neutral mediator to facilitate a settlement.
In dispute mediation, there is usually one hearing booked, said Rudner. These hearings can be either half-day or full-day sessions, where everyone convenes, either physically or virtually, to work toward an agreement.
“The vast majority of mediations do settle,” Rudner added, underscoring the efficacy of the approach.
Choosing a mediator
Choosing the right mediator is critical to a successful resolution, he said.
“Selecting a mediator often falls on the lawyers involved in the case, although I encourage HR professionals, who often have experience with mediation, to recommend mediators they favour,” said Rudner.
He emphasized the importance of finding someone with not only the appropriate subject matter expertise but also a personality that aligns with the nature of the dispute and the parties involved.
That’s because the mediator’s approach could significantly influence the outcome, he said.
“Sometimes you need a mediator who can be firm and bluntly explain why a party’s stance is unreasonable. In other situations, you may want a mediator who can listen intently, allowing parties to feel heard and validated,” he said.
Rudner believes he can offer both evaluative and empathetic styles of mediation, and stresses that a mismatch in personalities can derail the process.
When it comes to the question of confidentiality, Rudner emphasized the importance of maintaining privacy in these delicate conversations.
“Anything discussed at mediation should stay in mediation,” he said.
This level of confidentiality ensures that parties can be open and candid during discussions, safe in the knowledge that their statements will not be used against them in future legal actions or become public knowledge, he said.
Additionally, Rudner highlighted the role of documentation, stating that “you absolutely want to have minutes of settlement of this legal dispute, which clearly set out the deal.”
More requests for mediation
In Ontario, there is currently mandatory mediation for legal disputes — but only in Toronto and Ottawa.
“This creates a silly scenario, where you can file a claim in Toronto and you have to mediate it. But if you file it 40 kilometres away in Brampton, the same claim, you don’t have to,” he said.
He’d like to see more mandatory mediations, as most lawyers who have gone through the process see the value and will push for it even when it’s not mandatory. That’s because most of the cases that enter mediation end up settling.
“More than 90% of the mediations I handle are resolved,” said Rudner. “It’s tremendously effective.”
For more information about Rudner Law’s Alternative Dispute Resolution, visit https://www.rudnerlaw.ca/alternative-dispute-resolution/. Stuart Rudner can be reached at 416-864-8500 (phone or text) or [email protected].