Dispute resolution approaches

When municipalities need to discuss an important issue, engaging independent objective negotiation support can be helpful – especially if it is likely that contentious issues are expected to arise. A facilitator can plan, guide and manage the negotiation process so that everyone can focus on the issues. Engaging a facilitator early in the dispute resolution process approach when the external influence is most limited may benefit the process.

The facilitator’s role is to ensure that the negotiation proceeds smoothly. This includes:

• Supporting the group in understanding the objectives of the negotiation. 
• Ensuring all voices are heard and participants are comfortable sharing opinions and perspectives. 
• Capturing information provided by all parties. 

A facilitator can have a range of roles in a negotiation. Unlike a mediator, med-arb practitioner, or arbitrator, which are discussed below, a facilitator’s role is not to actively lead the municipalities involved in the negotiation to an agreement or impose an agreement upon them.

Facilitators can work directly with the parties prior to the negotiation to:

• design a formal process,
• schedule the time and location of negotiation meetings,
• can actively facilitate meetings,
• set context and ground rules and/or
• record results.

Alternatively, a less involved facilitator could be on ‘stand-by’ to help the group stay on track and push toward their objectives if conversations get off track or conflict begins to arise. A facilitator could also act as a neutral party to identify whether negotiations may require more formal outside involvement in the form of mediation, med-arb or arbitration. 

While there are no requirements for facilitators to be specifically trained or licensed to serve in this role, it is recommended that municipalities seek a facilitator with experience facilitating intermunicipal or municipal negotiations. 

If municipalities are unable to agree at any point, they should consider the option of engaging the services of a mediator who will attempt to bring the parties to an agreement. The mediator will manage the overall negotiation process, allowing all the parties involved to focus on the conflicting issues. Engaging an impartial and independent mediator early may assist all parties in more effectively addressing and advocating for their issues. A team of 2 mediators is a common approach (co-mediation).

Before initiating a mediation process, consider the following:

• all municipal councils involved agree that mediation is necessary;
• municipal councils appoint an equal number of representatives (elected and administrative) to participate in the mediation process;
• all municipalities agree to act in good faith;
• all municipalities agree to share the costs to engage a mediator;
• all municipalities agree on the mediation schedule, including the times and locations of meetings and the deadline to complete the mediation process. 

If the parties reach an impasse and cannot reach an agreement once mediation has occurred, they should request a mediator’s report that outlines areas of agreement and disagreement along with what issues the municipalities may need to utilize an arbitrator to settle.

If no mediated agreement can be reached, voluntary or mandated arbitration may be needed.

Mediation-arbitration (commonly referred to as ‘med-arb’) is similar to mediation. The decision to hire a mediator-arbitrator should be made at the beginning of your process; parties agree at the outset of selecting a mediator that the individual or team selected can arbitrate any outstanding issues if they are not resolved in the mediation.

A med-arb approach can have several advantages, particularly if parties expect negotiations to be challenging or conflicts to arise in certain areas. Setting up med-arb at the outset allows for a more streamlined transition – from talking directly with other parties with the intention of coming to agreement, to possibly reaching a stalemate, to entering into a binding decision process through arbitration. 

The guidelines for shifting from mediation to arbitration are established in the beginning of the negotiation process, which supports a faster and smoother transition from mediation to arbitration. Additional guidelines that are initially established are what information would or would not be included in an arbitration process, and/or if a separate arbitrator will be involved in the process to ensure impartiality.

Having a mediator engaged from the start who becomes familiar with the negotiation process and the issues will: 

• allow for a streamlined transition from mediation to arbitration; 
• limit conflicts between parties related to reporting on the negotiation process; and 
• assist with identifying remaining areas of conflict to an arbitrator who may be unfamiliar with the context of the negotiations to that point.

Two common ways med-arb processes can be conducted are by: 

• Sole Practitioner: Hiring one person who is the mediator in the process, and who will arbitrate if the parties cannot come to an agreement. 
• Team Approach: Another common method is to have one mediator and one arbitrator working as a team. The arbitrator is involved with the joint meetings to help facilitate, and the mediator is involved in the individual caucus and preparation meetings with the municipalities. 

There are various ways to conduct a med-arb so talk to a practitioner that provides this service to obtain more information.

Voluntary arbitration occurs when parties decide to engage an arbitrator to resolve one or more areas of disagreement. The main difference between the voluntary process and a mandated arbitration process is that voluntary arbitration gives the parties full control of the arbitration process under the Arbitration Act. This allows for more flexibility and discretion to be afforded to the municipalities in defining scope and process.

Mandatory arbitration occurs when parties are required to go to arbitration as part of an agreed-to dispute resolution process, for example if a deadline to reach an agreement is not met.