13 - Multi-tier and Mixed-Method Dispute Resolution in Canada

Summary

This chapter traces ADR’s rapid progress from the fringes to the centre of Canadian dispute resolution practice. Historically, Canadian lawyers and judges were suspicious of arbitration and mediation—mostly indifferent but sometimes outright hostile. Today, the landscape is radically different. Arbitration, mediation, and other forms of ADR are frequently chosen by parties and robustly supported by legislation and the courts; pre-trial mediation is even mandatory in four provinces (and encouraged in the others). The popularity of multi-tier dispute resolution agreements has correspondingly risen, and they are generally enforceable in Canada. The courts tend to interpret multi-tier agreements to limit jurisdictional hurdles and promote efficient resolution of disputes. Med-arb and other forms of mixed-method dispute resolution have a shorter history in Canada, and many practitioners remain skeptical of their propriety and efficacy. But they are starting to catch on, with new med-arb rules and a professional designation introduced in 2019.