Alternative Dispute Resolution
In addition to his practice as a leading Employment Lawyer, Stuart also provides Alternative Dispute Resolution (ADR) services. This includes mediation, arbitration, and a combination of the two known as med-arb.
Whether mediating or arbitrating, Stuart brings the knowledge and experience gained from:
- over two decades of experience as an Employment Lawyer, acting for both employees and employers,
- authoring a text on just cause for dismissal and contributing to several other texts, and
- leading courses and conferences on Employment Law.
ADR services are often preferred to traditional litigation due to the fact that the parties are able to have extensive control over the process. As they are fully involved, they can mould the proceedings to suit their needs.
ADR services can also sometimes be an affordable alternative to traditional litigation as parties can decide to shorten the process or opt out of using unnecessary lawyers and experts.
Another benefit to ADR is that disputes can be kept private as only those who are invited to the ADR session can attend. The parties can also come up with more flexible remedies that result in higher satisfaction rates.
Stuart regularly works as a mediator, combining his knowledge and experience in Employment Law with his interpersonal skills and problem-solving abilities. In order to ensure that he is well-equipped to help parties resolve their disputes, Stuart has completed an Advanced Alternative Dispute Resolution course and participated in several mediation workshops.
He thoroughly enjoys this rewarding and growing aspect of his practice and is now mediating frequently, which gives him the chance to approach disputes from a neutral perspective. As he acts for employers and employees, he already possesses the unique ability to see things from both sides. By acting as an objective third party, he can work with parties and their counsel to achieve a fair result. He has successfully helped many parties do just that, and is flattered by the fact that almost all lawyers that have used his mediation services have continued to recommend and work with him.
Stuart has acted as counsel at countless mediations, and he knows that one size does not fit all. Sometimes, an evaluative approach will be helpful, while other matters require a facilitative approach. In most cases, a mixture is the best recipe. One thing he will not do, however, is act as a “glorified courier”, delivering offers back and forth without working to help the parties reach an agreement. His goal is to help the parties reach a reasonable resolution, and he will adapt his approach to the unique circumstances of each case, and to the people involved, in order to achieve that goal.
Stuart is passionate about finding a resolution, and will work tirelessly and strategically to do so. He will adapt his approach to the circumstances, providing evaluative views but also exploring the underlying issues and other matters of importance to the parties when they are necessary to facilitate an agreement. There is no one-size-fits-all in mediation.
Ultimately, Stuart recognizes that the parties have entrusted him to help them reach a resolution. While many mediators claim that they don’t “keep score”, Stuart does, because if there is no settlement, he has not succeeded.
Due to demand arising from his services as a Mediator, and the general frustration with the court process, Stuart offers arbitration services as well.
Arbitration can provide many benefits over the traditional litigation process. Simply put, arbitration gives the parties to a dispute the chance to create their own “specialized court”; they are able to determine the best process for the matter, set the timelines, establish exactly what types of evidence will be required, and control how it will be brought in. They can also determine the types of remedies that can be imposed.
Best of all, the parties will not have a Judge assigned to them at the dawn of trial who may or may not have Employment Law experience. Instead, they can pick their own “judge”, and if they bring Stuart in, they can be confident that the ultimate decision will be made by an expert in the field.
Unlike a court process, the arbitration process can be tailored to the nature of the dispute. A simple severance case can be streamlined since there may be little need for live evidence and a decision can be rendered very quickly. Conversely, a case involving allegations of just cause, breach of restrictive covenants, or other more complex matters will require a more complex process.
Arbitration also offers efficiency. While a day in court can quickly be reduced to a few hours of actual court time if you start late and the judge has other matters to attend to, arbitration allows the parties to dictate the schedule and the “’judge” is accountable to them, so the time is used more effectively and efficiently. And, of course, there is also no need to educate your ‘judge’, as the parties can select a subject matter expert.
Stuart will work with the parties and/or their counsel to determine the most efficient and effective process to bring the matter to a conclusion. He will then apply his knowledge and experience to render a fair, reasoned decision.
Med-arb can offer parties to a dispute the best of both worlds. Stuart will work with parties to reach a negotiated settlement. If that is not possible, however, then the parties do not simply go their separate ways and continue with litigation. Instead, Stuart will then change course to function as the Arbitrator and render a binding decision.
Typically, at mediation, we discuss the fact that if the matter cannot be resolved, then the parties will continue through the litigation process, which could take months or years. That often means that a party that is reluctant to settle has little incentive to do so, since they can simply allow the matter to continue to drag on and perhaps consider settlement much later on.
Combining mediation and arbitration into one process can address that issue and also provide finality to the parties. It allows them to ensure that one way or another, their dispute will come to an end without undue delay.
In most cases, the arbitration phase will not be needed. But if it is, there is a process in place to keep things moving forward to a timely conclusion.
Often, the mediator will have enough information after the mediation to render a decision. But where appropriate, the parties may wish to adduce additional evidence to allow the arbitrator to render their decision with a full knowledge of the facts.
Like arbitration, the parties can determine the most efficient process for the specific case. In some cases, it is possible to have a one day med-arb. In more complex cases, the parties can agree to have evidence introduced either before or after mediation. Like arbitration, evidence can be adduced via live evidence, affidavits, documents, or any combination thereof.
Online Dispute Resolution
As the COVID crisis forced all courts to move into the online world, Online Dispute Resolution moved into the forefront of the legal system and proved to be extremely effective.
Stuart has been leading Virtual Mediations since the pandemic and can personally attest to their ease and efficiency. As anyone can access Zoom and similar technologies, Virtual Mediation is also accessible and improves access to justice.
Unlike a typical mediation, no one gets stuck in traffic, goes to the wrong floor, or has to leave at 3:00 to pick up their kids. Documents can be securely shared and parties don’t have to worry about leaving important papers at home or carrying around hefty folders. The mediator also has the power to control the conversation or move people into breakout rooms to assist in negotiations.
Online Dispute Resolution is an excellent option for those who crave flexibility and control in resolving their disputes.