When dealing with employment disputes, two common options for coming to a resolution are mediation and arbitration. In this article, we will discuss exactly what is involved in each of those processes and when they might be used to solve an employment matter.
What is mediation?
Mediation is a voluntary process where both parties involved in the dispute will get together to try to find a resolution without having to go to trial or a hearing. The fact that it is a voluntary process is important because it shows that all parties are willing to hear each other and try and come to a resolution themselves rather than asking a judge or arbitrator to do it for them.
In a mediation, the parties will hire a mediator, and the mediation may either take place virtually or in-person. It typically includes a group introduction, and the parties break into breakout rooms. The mediator will speak to each group individually to hear their side of the story and help them come to a solution to reach a settlement that everyone can live with.
The benefit of mediation is that both parties get some control over the outcome and can find ways to resolve the issue themselves. No one “wins” a mediation per se, but rather the result tends to be a compromise.
Can you force a mediation?
Technically yes, there are some rules under both the federal and provincial court systems where a mediation process can be made mandatory, and a party can be forced to attend. However, getting a successful outcome in these types of mediation is unlikely if one party is unwilling to engage in the process.
What is arbitration?
An arbitration is a parallel process to the courts in which you hire a third party (usually a lawyer) to hear your employment dispute and make a decision both parties are bound to follow.
The advantage of going to arbitration rather than court is that it tends to be a much faster process and it allows you to have more control over the process. Whereas going to court (litigation) has very strict rules and processes, in arbitration, you can sit down with the arbitrator to work out your own process. This can make it much faster (and therefore possibly less expensive in legal fees) to go through arbitration rather than litigation. Furthermore, with arbitration, you can choose an arbitrator with expertise in employment law (where going to court, you may end up with a judge whose expertise is in an entirely different area of law).
One drawback to arbitration is potential costs since you must pay the arbitrator (where you wouldn’t have to pay a judge). Other potential drawbacks are that an arbitrator won’t necessarily feel bound by precedent, and you don’t have the same ability to appeal.
A third less common option disputing parties have is a Med-Arb or mediation-arbitration. This is when the parties go to mediation with the understanding that if the mediation fails, it will go to arbitration.
The challenge with this process, though, is having a mediator who hears everything from both sides and can make a fair judgement as an arbitrator should it get to that stage – although some people swear by this process.
Contact Kent Employment Law today
Do you have an employment dispute you think could be settled by mediation or arbitration? Contact us today to speak to an employment lawyer.