RESOLVING LEGAL DISPUTES: ALTERNATIVES TO LITIGATION
All legal issues are essentially a dispute: two (or more) parties cannot agree on the interpretation or enforcement of their legal obligations. While the resolution of legal disputes is often conflated with the adversarial court system, in fact there exist a wide range of “alternatives” to litigation.
The most common legal dispute resolutions processes include:
- Litigation (most adversarial)
- Arbitration
- Mediation
- Negotiation (least adversarial)
There are many sub-categories and variations of the above (for example: binding vs non-binding arbitration; mediation-arbitration; etc). Further, these are only legal processes: resolving underlying issues can also involve political strategies (like lobbying, legislated solutions), social movements, “agitation”), public education, media, and more.
THE BENEFITS OF “ALTERNATIVE” DISPUTE RESOLUTION (“ADR”)
Litigation is a powerful tool for interpreting and enforcing legal obligations when parties hold irreconcilable positions. It can also be helpful to make a strong point and set a legal precedent (like test cases).
However, litigation is not the only way to solve legal issue. Sometimes a “win” at court comes at too high a cost: it can be expensive, time-consuming, stressful, and damaging to your relationships. Luckily, a range of alternatives exist.
In the case of Aboriginal rights matters, the Supreme Court of Canada has emphasized that reconciliation is better achieved through negotiated settlements than litigation. The Crown has a duty to enter into and conduct those negotiations in good faith.
OUR NEGOTIATION PRACTICE
In addition to our substantive subject matter expertise, we have strong negotiation practice. Our recent negotiation representative experience includes:
- Negotiating on behalf of First Nations in multi-community self-government arrangements with the federal government
- Negotiating on behalf of Tribal Council, First Nations, and Indigenous organizations for section 35 claims, Specific Claims, Federal Court claims for TLE implementation
- Negotiating permits, agreements, and transactions between proponents, federal government, and First Nations and Treaty groups for projects on First Nation lands
- Negotiating legal settlements and compensation for individuals with employment, human rights, and sexual harassment claims
- Negotiating restorative justice options for Indigenous individuals charged with hunting, fishing, and trapping laws
OUR ADR SERVICES
We are comfortable working in a range of tribunals and courts and dispute resolution processes. Our lawyers have a range of formal education, and unique expertise and experience in these processes. Our goal is to get best result for your goals.
We can help you with:
- Representation and strategic advice related to negotiations, including sending demand letters
- Guiding you through and representation at arbitrations, mediations
- Proving an experiential mediator or arbitrator for your dispute
- Conducting independent third-party investigations and inquiries in workplaces, sexual harassment complaints, incidents, disciplinary
- Creating dispute resolution processes for institutions, organizations, workplaces
- Preventative training and workshops
- And more