Frequently Asked Questions

The following is a collection of questions and answers, if you require any additional information contact us by email:

Q - When should I mediate a dispute and when should I sue?

Where your dispute doesn’t involve an important legal issue, mediation is a quicker and, less expensive means of resolving conflict. Mediation allows both sides to meet their needs through negotiation and the mediators’ role is to facilitate that process.

More importantly, mediation is a problem solving process that allows parties in conflict to design and commit to the kinds of creative solutions which courts of law are not empowered to do.

Q - If I agree to mediate a dispute, and I still can't reach agreement with the other party, can the mediator make a decision for us?

A true mediator does not make decisions for people in conflict. The role of a mediator is to encourage both sides to craft their own solutions by looking at the available alternatives and by analyzing the costs and benefits of different settlement options. Only If the parties agree may a mediator be permitted to express opinions as to the likely outcome of a dispute were it to go to trial. This kind of mediation is called ‘evaluative mediation’.

Q - As a business person who negotiates valuable contracts with other businesses, how important is it for me to use a trained negotiator to help me improve my negotiating skills?

Everyone who negotiates contracts with other business people needs to understand the basic principles of ‘interest based negotiation’. Successful negotiation depends upon proper pre-negotiation preparation and an understanding of the relationship between available alternatives and the costs and benefits of meeting your needs and those of another business person. A trained negotiator can help you master these techniques.

Q - I negotiate export contracts for my employer. If in a given situation I know that I hold the cards, why should I not demand my way with the other party to the negotiation. And if the other party suggests splitting the difference between our positions, why should I agree?

Successful negotiations rest upon each side preparing in advance before formal bargaining begins. Believing that you hold all the cards may or may not be true. If the other party has financial or psychological advantages of which you are unaware, or more importantly other options he is keeping secret, your cards may not be as good as you think. As far as splitting the difference in your positions is concerned, there is no reason in principle for doing this. While splitting the difference tells you that both of you want to deal, it also says that you are more interested in getting the negotiations over with than in your advantages and costs.

Q - As my company grows, more conflict develops among staff. How should I deal with this conflict before it begins to take up too much of my own time?

Your own time loss is not the only problem that results from workplace conflict. As conflict escalates, staff often bicker with one another, take days off, claim disability benefits, seek reassignment elsewhere in the organization where possible, or resign. These disruptions impact on productivity and go to your bottom line. If this is happening, you and your staff need to meet with a trained conflict resolution professional to set up training workshops which help them learn that effective communication is based upon the principles of ‘interest based negotiation’, backed up by a mediation process that works to end conflict at an early stage.

Q - As the owner of a large company with a multi-cultural staff, I increasingly receive reports from my managers about staff conflict. I sense that one of the main sources of this conflict is cultural. Not all of my staff approach dialogue with other employees in the same way and heated arguments regularly occur. What should I do?

Your managers should maintain a data bank regarding these conflicts. Your data act as an ‘early warning system’. If the reasons for your staff arguments have less to do with the content of their decision making and more to do with their communication styles, you need to set up training workshops facilitated by a trained conflict resolution professional who can work with staff on eliminating the communication errors which upset other staff members. One of the best ways of doing this is through the use of ‘role play’ which points out why staff are offended by culturally unfamiliar communication styles.

Q - As the owner of a mid-size business which is growing quickly, should I be concerned about a sudden increase in staff conflict?

Given the quick increase in the size of your staff, it is not surprising that the incidence of staff conflict is increasing. Conflict is a natural part of life because people are people and they will not always see things in the same way. What is important is how your company manages this conflict. If your managers hear of serious staff conflict through the grapevine, or are approached directly by staff with a complaint about another member of staff, you need to empower your management team to mediate among your staff using the principles of ‘interest based negotiation’. That means designing a staff mediation process, and training your managers so that they can quickly mediate these conflicts themselves before they escalate. It also means training your staff to voice their concerns productively. The worst thing to do is to allow conflict to fester.

Q - If I agree to mediate a dispute and am unable to come to agreement with the other party, can the other party and I agree to appoint the mediator to make a decision which is binding on both of us?

If you both agree that the mediation, should it fail after a certain period of time, will be converted into an arbitration, the arbitrator may make a decision. Whether his decision is final and binding depends upon the kind of authority you give to the arbitrator. In a non-binding arbitration, the arbitrator merely expresses an opinion. In a binding arbitration, the arbitrator’s award has the same effect as the judgment of a court of law. Where mediation and arbitration are combined, the process is known as med/arb.

Q. - After twenty years as a manufacturer in a very price competitive business I find that some of my newer customers are happy to give me work orders when I am more price competitive than other manufacturers. Once my goods are shipped, they try to renegotiate price. Why shouldn't I just sue them to teach them a lesson?

The desire for revenge is a powerful motive. However, you need to analyze the costs and the benefits of litigation versus negotiation. If you sue, the time frame for litigation, and the legal expenses involved may result in a victory which looks more like a loss. You also may be assuming that your customer has no legitimate complaint which might provide him with a legal defense. As well, if your customer is playing games with you because he is in financial trouble, you may win and still not recover your money. Sometimes the better course is to negotiate a compromise on the theory that a bird in the hand is worth two in the bush. Once you have your money you can always decide not to do any further business with him. Your best course of action is to look at all of your alternatives and to do a cost-benefit analysis with respect to each.

Q. - If I can’t settle a business dispute on my own with a customer for $435,000.00, am I better off going to court or should I look at arbitration?

The shortest answer I can give you is this. Arbitration can work very well, very quickly and relatively inexpensively if both parties really want to resolve the dispute. If so, the best thing you can both do is review the arbitration agreement you may have. If you don’t have one, then sit down and negotiate one. An appointed arbitrator can be very helpful in providing a checklist of key points. You need an arbitration agreement that lists every dispute you want to arbitrate and dots every procedural ‘I’ and crosses every procedural ‘T’ so that you can move to your arbitration hearing quickly without running back and forth to court for assistance.

Q. - Why do some arbitration agreements mention appointing one arbitrator and others mention three?

Usually, arbitrations involving a smaller amount of money are handled by a single arbitrator. Where the dollar value of the dispute involves more money and where the subject of the dispute is highly technical, parties may want to appoint two arbitrators with expertise in the particular field and name a lawyer as the third member of the panel.

Q. - Since arbitrations are a private process, what protection is there for the parties if the arbitrator acts unfairly or seems biased toward one party and against another or does not communicate with one of the parties?

Arbitrations are governed by a number of statutes. Arbitrations between parties that reside outside Canada and may have already decided to be bound by the law of a foreign jurisdiction will be governed by one or another Arbitration Acts, whether foreign or Canadian. However, arbitrations between parties who reside or do business in Canada will generally be governed by the Arbitration Act of their province and usually parties will have pre-agreed as to which province’s law applies. Regardless of which particular law applies, the parties are protected from misconduct by arbitrators and have the right to go to motions court to challenge various forms of misconduct. You may want to read my publication posted on this web site that deals with this problem in more detail.

Q. - Do arbitrators have the same powers that a judge has?

Where the parties have formal arbitration agreements that they can amend, those agreements will or at least should set out an arbitrator’s powers. In any case, the governing statute of a jurisdiction such as Ontario also provides for those powers. In a sense the arbitrators are like personally appointed judges without going to court.

Q. - Does every arbitration need a formal hearing?

The short answer is no. Take a look at my testimonials page. You will see one testimonial that deals with an insurance policy claim where the only evidence was valuation evidence submitted in book form. I never needed to see a single witness and the entire process was competed in four days.