Who does the BC Arbitration and Mediation Institute serve?
As a professional body and a regional affiliate of ADR Institute of Canada, the BCAMI represents trained, experienced and accredited practitioners of mediation and arbitration throughout British Columbia. The BCAMI serves its membership by providing a referral and appointment service, training opportunities in Alternative Dispute Resolution 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.
What is ADR?
Alternative Dispute Resolution (ADR) is a term used to describe a basket of procedures outside the traditional litigation process, usually entered into voluntarily by parties to a dispute in an attempt to resolve it. These procedures range from unassisted negotiation at one end of the spectrum to binding arbitration at the other. Arbitration and Mediation are the most common types.
What is the difference between mediation and arbitration?
Arbitration involves adjudication by a third-party neutral. While it is possible to structure arbitration to be non-binding, most arbitration is designed to be binding. Arbitration will in most instances arise by agreement of the parties, either arising out of a pre-existing agreement or based on the specific terms of an arbitration agreement entered into after the dispute has arisen. The single most important distinction therefore, is that the decision of the arbitrator, unless otherwise agreed, will be binding, and the decision may be entered on the court record.
What is the difference between a mediator and an arbitrator?
The mediator does not make a decision, but rather works with the parties to assist them in finding a solution to their dispute that is satisfactory to them. An arbitrator, also a third-party neutral, makes a decision based on the arbitration agreement and the evidence presented in the arbitration proceedings, and the decision, unless otherwise agreed, is binding on the parties.
Is ADR suitable in all cases?
No. For ADR to be successful, the parties must genuinely wish to achieve a settlement. There are cases in which this will not be the desire of one or more of the parties. Examples are: cases where the parties wish to establish a precedent; where a point of law exists upon which the parties wish to have a formal judicial ruling; where a court order is required to enforce a judgment; where evidentiary processes are required to protect the rights of a party; or where extraordinary court relief is sought, such as a declaratory judgment.
Which method of ADR is most often used?
Mediation is the most frequently used form of ADR, though it may be used in conjunction with other forms of ADR.
When is the best time to use ADR?
Resolution of a dispute requires careful preparation whether the process used is ADR or litigation. Careful analysis of the dispute involves fact and document gathering and involvement of those who are able to provide evidence. Analysis of the facts and the law are necessary to permit an assessment of risk and of the value of a claim or level of exposure to a claim. Contemporaneous with these assessments, consideration should be given to the use of ADR.
If for any reason ADR is not initially thought to be appropriate, it should nevertheless be considered as circumstances develop and as procedural milestones in litigation are passed – such as at the close of pleadings; production of documents; completion of discoveries; setting down for trial; and at the time of witness preparation for trial. The success rates from using ADR are such that the presumption ought to be that ADR should be used, and justification be sought as to why it is not being used.
Who pays the arbitrator/mediator?
The costs of an arbitration are in the discretion of the arbitrator who, in making an order for costs, may specify the persons who must pay and the amount to be paid.
All parties shall bear their own costs for mediation and share equally the fees of the mediator.
How is an arbitrator or mediator selected for a case?
After reviewing a completed Request Form To Start A Proceeding, the Institute will:
- Send to each party simultaneously (or to counsel as directed) a list of member Chartered Mediators or Chartered Arbitrators knowledgeable in the area of dispute, together with a brief resumé of their experience and the appropriate arbitration or mediation rules.
- Ask the parties to make their selection from this list. Unless the dispute warrants a panel of three, the Institute recommends a single arbitrator as a more cost-efficient solution. In mediation, a single mediator or a co-mediator can be selected.
- When the parties return the list to the Institute, if the parties have not selected the same individual, the Institute will make the appointment from the names remaining on the list and advise the parties.
How is a strata dispute arbitrated?
Section 179 of the Strata Property Act ("the Act") allows disputes between a strata corporation and an owner or owners to be resolved by arbitration rather than through the courts. Disputes between owners and other owners, between owners and other tenants, and between the strata corporation and tenants can also be resolved through arbitration. Note, however, that there are certain disputes respecting tenants – specifically those between a landlord and a tenant – that must be resolved by arbitration under the Residential Tenancy Act. For information on Residential Tenancy arbitrations, please contact the Residential Tenancy Office at 604-660-3456.
Arbitration under the Strata Property Act begins with one party giving the other party a Notice Beginning Arbitration (Form L) (or online form). This notice informs the other party of the nature of the dispute and proposes a method of appointing an arbitrator. The Notice Beginning Arbitration and the Notice Responding to Reply can propose appointment by the British Columbia Arbitration and Mediation Institute as the method of appointing the arbitrator. Complete the Notice Beginning Arbitration, fill in the blanks for the owner's strata lot number and the number of the strata plan, attach the details of the dispute on a separate page or pages, and give the notice, along with the blank Notice of Reply (Form M) to the other party. The other party then has two weeks either to agree to have the arbitrator appointed by the Institute or to propose a different arbitrator or a different method of appointing an arbitrator.
If the other party is agreeable to having the Institute appoint the arbitrator, copies of the Notice Beginning Arbitration and the Notice of Reply must be provided to the Institute.
What is ADR Systems Design?
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 BCAMI can assist organizations in finding ADR Systems Design consultants appropriate to their needs.