WHICH PROCESS IS RIGHT FOR YOU?

To determine which process is right for your dispute and book a date, contact Stuart’s Assistant, Janis Buckley:

janis@rudnerlaw.ca
416-864-8504

Why Work with Me?

  • While many mediators claim that they don’t “keep score”, I do, because if there is no settlement, I have not succeeded. As a mediator, I enjoy a success rate well over 90%;
  • I have been practicing Employment Law for more than 20 years;
  • I work with employers and employees, so I understand both perspectives;
  • I have authored a text on just cause for dismissal and contributed to several others;
  • I will provide my evaluation of the case while exploring any underlying issues and other matters of importance to the parties when they are necessary to facilitate an agreement;
  • I am not a purely evaluative Mediator or a purely Facilitative one – I will adapt my approach to the parties and circumstances;
  • I will use the tools at my disposal to help the parties reach a settlement, including Mediator Proposal and Final Offer Selection;
  • I have effectively conducted hearings by Zoom and other video platforms; and
  • I am passionate about finding a resolution and will work tirelessly to do so.

Since I am able to offer video hearings, I can help you and your clients regardless of where you are. You do not have to restrict yourself to local mediators and arbitrators.

Over 20 years of practicing Employment Law, I have handled hundreds of cases and attended countless Alternative Dispute Resolutions. I have seen every different type of mediator, noting which strategies are effective and which are not. I was honoured when, a few years ago, two of my colleagues asked me to mediate a matter they were working on. They felt that my expertise in Employment Law and my personality would be well-suited to helping their clients reach a resolution. I readily agreed, helped them reach a settlement that everyone was happy with, and was hooked. I then enrolled in Alternative Dispute Resolution courses such as Stitt Feld Handy’s Advanced Alternative Dispute Resolution.

Since then, I have mediated hundreds of cases and applied the tools I have learned through training and experience. While many mediators claim that they don’t “keep score”, I do , because if there is no settlement, I have not succeeded. As a mediator, I enjoy a success rate well over 90%. I understand that one size does not fit all: I will adapt my approach to the nature of the dispute, the parties, and the circumstances. Sometimes, an evaluative approach is needed, and I use my experience and knowledge to provide a credible opinion to the parties. In other cases, that will not work. I will not simply act as a glorified messenger, conveying offers back and forth with no input. I will work to identify the interests of each party, develop creative solutions when they are needed, and explain to the parties what the strengths and weaknesses of their case are so they can properly assess the value of settlement. If the parties don’t want to mediate, or as a backup plan if mediation is unsuccessful, I will use my knowledge and experience to conduct an arbitration and bring the dispute to an end.

As my practice evolves, more of my time is spent providingAlternative Dispute Resolution (ADR) services which include mediation, arbitration, and a combination of the two known as med-arb. Having advised and represented employers and employees for more than two decades, I understand that parties to a dispute want an efficient, cost-effective way to bring the dispute to an end, whether that is by way of judgment or negotiated settlement\.

Pick your “Judge” and Choose your Process

Counsel often lament the lack of a specialized Employment Law Court. We complain about how the litigation process takes too long, is inefficient, does not allow for a process tailored to the size and nature of the dispute, and does not ensure that a Judge with experience in Employment Law will preside over the trial.

The reality, however, is that we are free to create our own process for any case, set out exactly how the matter will be handled, and choose a subject-matter expert appropriate for the specific case. That is ADR. It can include mediation, arbitration, med-arb, or Final Offer Selection. There can be examinations for discovery, examination in chief by way of affidavit or viva voce evidence, or any other way to ensure the matter is dealt with efficiently. There can also be clear timelines which the parties establish, rather than waiting for the court.

Our civil litigation process is not customized for the size and nature of a dispute. As a result, many matters take years to wind their way through the court system with the parties spending excessive amounts of time and money on steps that are unnecessary. We all know that a day in court can quickly become three hours of actual court time if you start late, and the judge has other matters to attend to. With arbitration, the parties dictate the schedule and the “judge” is accountable to them, so you have a lot more control, and the time is used more effectively and efficiently.

ADR allows the parties to design a process which makes sense for the specific case. As they are fully involved, they can mould the proceedings to suit their needs. As a result, ADR can 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.

Mediation

Stuart regularly works as a mediator, combining his knowledge and experience as a lawyer 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. More importantly, he enjoys a settlement rate over 90%, has received overwhelmingly positive feedback, and has seen that once a lawyer works with him once, they tend to come back again.

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. Stuart 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.

Arbitration

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

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 hearings since before the pandemic and can personally attest to their ease and efficiency. As anyone can access Zoom and similar technologies, they are also accessible and improve access to justice.

Unlike a typical hearing, 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 boxes. The mediator also has the power to control the conversation or move people into breakout rooms to assist in negotiations. And parties can act as witnesses in arbitration without the burden of travel.

Online Dispute Resolution is an excellent option for those who crave flexibility and control in resolving their disputes.

Which Process is right for you?

To determine which process is right for your dispute and book a date, contact Stuart’s Assistant, Janis Buckley:

 

janis@rudnerlaw.ca
416-864-8504

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