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Difference between revisions of "Choosing the Proper Forum for Small Claims (20:IV)"
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Choosing the Proper Forum for Small Claims (20:IV) (view source)
Revision as of 17:19, 4 July 2016
, 17:19, 4 July 2016→D. Alternative Dispute Resolution
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Parties who wish to preserve their relationship, avoid the stress of trial, keep the details of their dispute private, or resolve their dispute in months instead of more than a year should seriously consider alternative dispute resolution. | Parties who wish to preserve their relationship, avoid the stress of trial, keep the details of their dispute private, or resolve their dispute in months instead of more than a year should seriously consider alternative dispute resolution. | ||
=== 1. Negotiations === | |||
Negotiation is cost and risk free. Any contact between the parties should be used to attempt to negotiate a settlement. Parties can negotiate a settlement at any point before a judgment is pronounced. Negotiations are without prejudice, which means they are confidential between the parties and cannot be used against a party in court.Any documentation related to negotiation should have the words “WITHOUT PREJUDICE” written across the top. | |||
Ask the other party if he or she is represented by a lawyer. If so, all communication should be with the lawyer. If the other party is not represented, ask the other party if he or she is willing to discuss the claim. | |||
Telephone technique should be '''firm''' but '''not argumentative'''. Try to negotiate the best offer possible. | |||
Make a written plan and keep detailed notes of each conversation as it occurs. Plan how best to find out the other side’s position and how best to put forward your position. | |||
If a settlement is reached, a letter should be sent to the other party to confirm the agreement. Enclose a duplicate copy for the appropriate party to sign and return to you. Any settlement should include a mutual release agreement in which both parties agree to not bring any further claims against each other and to withdraw any other proceedings that may have been commenced. | |||
'''NOTE''' – If there are multiple defendants, a claimant should obtain legal advice to ensure that an agreement with one defendant does not inadvertently release the other defendants from liability. | |||
=== 2. Mediation === | |||
Mediation is a voluntary process in which an independent, neutral party listens to each party’s position, focuses the issues in dispute, and assists the parties to come to a settlement agreement. While the mediator plays an active role in ensuring discussion remains productive, the ultimate responsibility for resolving the dispute rests with the parties. The purpose of mediation is not to determine who wins and loses, but to find solutions that meet the needs of the people involved. | |||
Mediation as an alternative to litigation is often a more expedient, less expensive, and more satisfactory route than litigation. In order to mediate outside of the Small Claims Court process, all parties must agree. The parties typically share the cost of mediation. | |||
The Small Claims Court requires that parties participate in either a settlement conference or mediation. Both processes are highly successful in resolving disputes and there is no additional cost to either party. For information on these processes, see the [http://www.ag.gov.bc.ca/courts/small_claims/info/guides.htm Small Claims Procedural Guides]. | |||
Parties who choose to mediate outside of the Small Claims Court process can choose their mediator35, resolve the dispute sooner and on a more convenient timeline, and spend more time resolving the dispute than the approximately 2.5 hours allocated by the court. Also, since both parties would have agreed to mediate, settlement is more likely than if mediation is compulsory. | |||
==== a) Conflict Resolution Clinic (CoRe Clinic)36 ==== | |||
The CoRe Clinic provides mediation services on a flexible payment scale. Sessions are run by a professional mentor mediator paired with a trained student mediator. The mentors are often the same mediators available through the BC Mediator Roster Society but are available at greatly reduced rates while volunteering with CoRe. All mentors have extensive Small Claims mediation experience, and significant expertise in other areas of the law as well. Students working with CoRe have undergone training through the UBC Faculty of Law Mediation Clinic and Practicum courses. Consider using the CoRe clinic for mediations under Rule 7.3. CoRe may also be particularly useful where parties have not yet filed a court action. Mediations with CoRe are voluntary, and both parties must agree to mediate in order for CoRe to assist. CoRe offers a flexible process that can be designed to accommodate the individual needs of parties to a dispute. Where requested, mediation sessions can be held in a range of locations, or by teleconference. In some cases the process will run more smoothly if parties to a dispute are kept separate. Mediation in general and CoRe in particular can provide a faster, less expensive alternative to court. For more information, refer to [http://faculty.law.ubc.ca/coreclinic CoRe’s website]. | |||
=== 3. Arbitration === | |||
Arbitration is a voluntary process in which an independent, neutral party will listen to each party’s position and resolve the conflict by choosing one of the party’s positions. If the arbitrator’s decision is binding, the dispute is settled. If the arbitrator’s decision is non-binding, the parties may accept it or proceed to litigation. Arbitration can offer a very quick resolution to disputes and encourages both parties to present reasonable offers in order to increase the likelihood that their proposal will be selected. In order to arbitrate, all parties must agree. The parties typically share the cost of arbitration. The Small Claims Court does not require or provide arbitration; parties who wish to arbitrate must do so on their own.37 | |||