Finding right approach is key in alternative dispute resolution

Employment/Labour /
Stuart Rudner
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By Tony Poland, LegalMatters Staff • Toronto-area employment lawyer and mediator Stuart Rudner says success in his field requires the ability “to go with the flow and adapt,” tailoring the mediation approach to suit each situation.

Rudner, founder and managing partner at Rudner Law, says there is more than one way to a settlement and he is not afraid to be “a little creative to get the parties over that last hurdle to reach a deal.”

“It makes sense to give clients different options and it is important for people to be aware of what’s out there. An approach or option might be effective in one case but may not work in another. Ultimately it is the mediator’s job to find the right path to a resolution,” he says. “I always say if there is a deal to be had, I will find it. You must be flexible in order to do that. You have to bring experience to the table.”

Rudner says litigation is costly and time-consuming, leaving mediation as an effective and viable alternative.

‘You have to adapt as you go’

“Retaining the right mediator is essential. They need training in alternative dispute resolution. It is a matter of getting to the underlying issues of the case, but you also have to adapt as you go,” he says.

Last year, the ADR Institute of Canada (ADRIC), a self-regulatory dispute resolution organization, drafted a framework for mediation-arbitration (med-arb) processes and created a designation for med-arb practitioners. It was touted as the first in Canada and perhaps first in the world. 

It is a hybrid approach to dispute resolution that begins with mediation. If no settlement can be reached the mediator assumes the role of arbitrator and the matter moves to a binding decision. 

“The concept has existed for quite a while but it’s not very common in employment law,” Rudner tells LegalMattersCanada.ca. “More people would be wise to give it some thought and use it in appropriate circumstances.

“It is helpful in situations where parties are looking for finality,” he adds. “It is designed for those who want the litigation process to end, either through a negotiated settlement or through a verdict rendered by an arbitrator they have chosen. One way or another, they want closure and that’s what this process will provide.” 

Rudner says arbitration is tremendously effective because it is “often more timely and efficient than the civil litigation process.”

Clients are free to choose an expert

As opposed to going through the courts where a judge is assigned to your case, arbitration allows you to “choose an expert who you think would be more appropriate,” he says.

“By going down the med-arb road, you are trying to resolve it at mediation. If that fails you move right into arbitration instead of returning to the litigation process,” says Rudner. “For efficiency, timeliness, cost, privacy and confidentiality, it is tremendously advantageous.”

Some have suggested that the mediator should not become the arbitrator if a deal is not reached because that mediator learns details that may still be on their minds during arbitration, potentially making them biased.

But Rudner says he doesn’t believe “the mediator/arbitrator is going to be unduly influenced by things that they learn during mediations.” 

“For those who are unconvinced, there’s an easy way to avoid that. You have your arbitration hearing first and the arbitrator reaches a written decision that is sealed in an envelope,” he says. “Now, you start the mediation. If a settlement cannot be reached then the arbitrator’s decision is revealed. By doing it this way, it forced both parties to make a good faith effort to reach an agreement, since they know that if they don’t, that envelope will be opened and they will have a decision imposed upon them that they may not like. And anything that comes out during the course of mediation will not have influenced the arbitrator’s decision because it has already been made.”

Rudner says learning how to adapt an approach to fit the circumstance can be beneficial in negotiating a settlement.

Baseball arbitration could work well

“The other method that hasn’t caught on in employment law but could work really well, especially when you are talking about a wrongful dismissal case, is final offer selection – often called baseball arbitration,” he says. 

Rudner says in Major League Baseball salary arbitrations, each side comes up with a compensation number they believe is fair and the arbitrator hears their submissions.

“At the end of the hearing, the arbitrator doesn’t have carte blanche to award whatever salary they choose. They have to pick one of the party’s final offers,” he says. “You can imagine both parties are really forced to submit a fair offer because if one party proposes something that’s completely unreasonable, the other side will win.”

Rudner says the baseball method can be successfully used in wrongful dismissal cases where “you are really just fighting about the amount of money that should be paid out.”

“If there’s an impasse that cannot be resolved at the end of a day of mediation then both parties can make their final offer,” he says. “Then the mediator becomes an arbitrator and selects what they believe is the most reasonable.”

Mediator’s Proposal can bridge the gap

Rudner says one of the methods he often employs to bridge the gap between parties during a negotiation is the Mediator’s Proposal. He says there are times when he has brought two sides relatively close to an agreement but there is still an impasse.

“Nobody wants to accept the other side’s offer and that’s the stumbling block. At that point, I will make a proposal. It’s not an offer coming from the plaintiff or the defendant and it should be done using a double-blind approach,” Rudner says. “If both sides agree, they have a deal. But if one or both disagree, then that’s it. Because it is double-blind, if the plaintiff agrees but the defendant doesn’t, then the defendant will never know the plaintiff was willing to take the deal. That way their negotiation position isn’t compromised going forward.

“I find the vast majority of times when I do the mediator proposal, it is successful. That’s because I’ve usually spent the better part of a day with both sides. I understand the case and have a good idea of what each side is willing to accept.

In the end, it makes more sense not to get boxed in by one strategy, he says.

Litigation can be expensive, risky

“I find the employment law bar has really just been mediating with very few variations. But it’s important to consider whatever is going to work to get finality for your client,” says Rudner. “I tell my clients, and the parties to a mediation, that a settlement should be accepted if it beats the alternative: continuing with litigation, which can be expensive, time-consuming and risky. 

“Especially now in the COVID world, it can take years to get a final judgment. Mediation not only makes sense on a cost-benefit basis, but you can avoid stress, anxiety, uncertainty and the time commitment that goes along with litigation.”

The bottom line is that as a mediator, Rudner prides himself on doing everything he can to help the parties reach a resolution. He will adopt different approaches and techniques and will propose creative methods such as the Mediator’s Proposal, med-arb, baseball arbitration, or anything that will bring the dispute to an end. 

“That’s my job: to help the parties put the litigation behind them and move on.”

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