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FULL SPECTRUM ADR SERVICES
The Out of Court Options You Need
Incarna Consulting provides a full spectrum of third-party dispute resolution services, including neutral evaluation services, investigations, mediation, arbitration, conflict coaching, and workplace restoration.
We work with businesses and organizations to design dispute resolution systems by developing frameworks, policies, and procedures relating to contract and employment disputes, and providing organizational reviews to highlight, analyze, and problem solve institutional conflict.
Incarna Consulting is recognized by the Saskatchewan Ministry of Justice as Family Mediator as defined by the Section 44.01 of The Queen’s Bench Act, 1998 and Parenting Co-Ordinator as defined by The Children’s Law Regulations, 1998 as well as a Gladue Report Writer for Section 718.2 of the Criminal Code.
Saskatchewan’s International Arbitration Firm
Whether you’re the in-house counsel for a large multi-national litigating a major contract dispute, a disruptor in technology battling to protect your intellectual property, or a small family owned business with import-export issues, we have you covered.
Not only is Incarna Consulting is the only Saskatchewan ADR firm with a member of the Canadian Arbitration Committee for the ICC International Court of Arbitration, we also proudly host the first Saskatchewan resident appointee to a trade commission advisory council.
THE INCARNA ADVANTAGE
Thought Leadership & Modern Solutions
We are the only firm in Canada licensed to provide the full suite of New Ways training for youth, families experiencing high-conflict divorce and separation, and workplace conflict. We are also certified by the Canadian Centre for Occupational Health and Safety and Worksafe Saskatchewan for workplace incident investigations and inspections.
A Spectrum Of Choice
Commonly abbreviated to ADR, alternative dispute resolution, also called appropriate dispute resolution, is any method of resolving disputes without litigation. While mediation and arbitration are the two primary ADR methods, dispute resolution actually exists on a spectrum, starting with facilitation and negotiation (where the parties have full control over everything, including the process, format, and outcome) and ending with administrative tribunals and the courts (where the parties have no control over the process, format, or the outcome).
ADR methods fall into three categories: collaborative processes, such as mediation, where the parties work together to come to a decision; evaluative processes, such as early neutral evaluation, where the parties receive a ‘reality check’ on their positions from a neutral third party; and adjudicative processes, where the parties rely on a neutral third party to make a decision on their behalf. While the courts may be asked to review ADR methods for validity or legitimacy, they very rarely overturn ADR agreements, decisions, and awards if the disputing parties formed a valid contract to abide by them.
Facilitation involves a neutral party managing the meetings and communication between parties who are seeking a resolution to an issue on their own. Facilitators manage everything surrounding a dispute, such as the facilities, the agenda, and emotions, but do not directly engage in the solution making process. Facilitators maintain focus and direction.
There are two types of negotiators: independent and representative. Independent negotiators are employed to serve all parties equally, and work to find the best solution for everyone–often called shuttle diplomacy. Representative negotiators seek the best solution for their client, and work on their behalf within a mandate and scope of decision making power.
Mediation is a voluntary process in which all parties involved follow a fair and balanced procedure that creates a constructive framework to open dialogue between parties and allows for creative solutions. Mediation only results in an agreement if all parties involved reach consensus.
Conciliation is a process similar to mediation, except the neutral actively engages in the problem solving process by suggesting, analyzing, and critiquing solutions, and usually plays the dominant role in formulating and writing the agreement and implementation plan. In the even that parties are unable to come to a resolution, the conciliator prepares a report with a proposed solution and reasons why the parties should adopt it. The proposal is not legally binding or enforceable.
Arbitration can be as formal as a court proceeding, or extremely simple; regardless, it functions in a similar format with less restrictions and requirements. This user-friendly process improves access to justice for self-represented individuals, and reduces the time and effort needed for a conclusion. Arbitration awards are as binding and enforceable as a court judgement, with a limited appeal process, called Judicial Review.
Arbitrations can be expedited and brief, or comprehensive and as lengthy as a trial. Likewise, they can also be conducted by submission only, or with a full in person hearing.
Med-Arb or Arb-Med is a blended process that combines the independence of mediation and the finality of arbitration, offering parties the best of both worlds and potentially significant cost and time savings. In Med-Arb, parties begin the mediation process with an agreement to stop at specific point, and then leave the matter to the neutral to arbitrate a decision. Parties can choose to impose time and cost limits to mediation, or opt to leave it to the neutral to determine when a stalemate has occurred.
In Arb-Med, the process is reversed. Parties present their cases and arguments in an arbitration proceeding, and the neutral drafts a decision that remains sealed. The parties then engage in a mediation process with a predetermined stopping point, after which the parties are bound by the previously ‘secret’ award if they have not reached an agreement.
Adjudication is a process similar to arbitration, where a neutral third party makes a decision on matters referred to them by the complaining party. Typically, adjudication looks at matters of fairness rather than legalities, as the issues mostly center around misinterpreting the terms of a contract. Sometimes it is enough for the adjudicator to simply set out the correct interpretation of the contract, but most disputes involving claims for money, time extensions, or strained relationships between the parties require ongoing conflict management until the completion of the contract.
Adjudication is most commonly used in consumer complaints, commercial lease disputes, construction disputes, and force majeure or frustrated contracts.
Administrative tribunals, often called ‘boards’ or ‘commissions’, are established by a professional association, government body, or through legislation to hear and decide complaints according to policies, regulations, and law. They are essentially arbitration tribunals composed of a panel of content experts; however instead of deciding disputes between multiple parties, tribunals are a rather ‘one-way’ complaint resolution mechanism that decides if a member of an association is in breach of their practice requirements (such as malpractice or misconduct), or if a body or government organization acted inappropriately or unfairly.
Administrative tribunals not only decide the facts of the matter and whether a wrong has occurred, they also have the authority to apply sanctions and remedies.
Neutral Fact Finding
Neutral Fact Finding is less of a process and more of a consultation. Both parties submit their cases to a neutral party for review, and the neutral identifies the agreed upon facts, identifies the issues in contention, and assesses the evidence for credibility. The neutral makes findings of fact on the balance of probability and prepares a report that may or may not be binding, according to the wishes of the parties.
Fact finding is extremely useful for parties who struggle to work together to create a Statement of Agreed Upon Facts, and for cases that would be better served by arguing legal positions and interpretations of legislation rather than the details of matter.
Early Neutral Evaluation
Early neutral evaluation (ENE) is an informal, flexible, and creative method of dispute resolution which is not governed by the strict rules of procedure and evidence. This allows the parties to design a process to suit their needs and encourages a collaborative rather than adversarial approach. Similar to a settlement conference in the court system, ENE is a non-binding process where the parties each present their case and the neutral presents alternative arguments or information for consideration, and assists them in identifying areas of agreement and defining the scope of the dispute.
At the end of the process, the neutral provides an analysis of the dispute and the arguments presented, highlighting the strengths and weaknesses of each case, as well as an explanation of the range of possible conclusions of a binding process. After the evaluation phase, parties typically consent to enter into a settlement process of their choosing or opt to proceed to court or arbitration.
Despite using the word trial, a mini-trial is actually a carefully structured and refined method that enables parties to settle their dispute quickly. Rather than worrying about procedural issues, the emphasis is on identifying the dispute’s core issues and addressing them in a quick and frank manner.
As with all ADR processes, the format and procedures of a mini-trial is determined by the participants, but typically involves a short period of discovery, followed by a very brief hearing for arguments, and concludes with a set period of negotiation. If the parties are unable to reach a settlement independently, the neutral party prepares a report detailing the most likely outcomes at a trial or arbitration proceeding, which usually encourages the parties to settle their issues.
An investigation is an inquiry into a complaint or incident by a trained neutral party, usually pertaining to misconduct, malpractice, or negligence. It is a fact-finding process to gather and assess evidence, and may result in a formal hearing process or corrective measures being taken. Neutral investigations are vital in the natural justice process, providing a balanced review of volatile situations with far reaching consequences.
System & Policy Consulting
Incarna Consulting provides policy, system and process design services, as well as analyzing existing dispute resolution or prevention programs within an institution or company. We work with you to identify hazards, gaps, and issues, and construct a logical, effective, and efficient way to manage conflicts at work, in the community, or at the administrative level.
Incarna Consulting provides individual and group based conflict coaching and skills training using the New Ways™ programming developed by the High Conflict Institute. New Ways™ focuses on teaching the 4 Big Skills™: managed emotions, moderate behaviors, flexible thinking, and checking yourself.
New Ways for Life™ is a simple skills-building program that teaches people how to deal with the stress and uncertainty of today’s world. In this program, people learn the 4 Big Skills™ that will help them cope with added stresses from relationships, peers, and the way they interact with people online.
New Ways for Work℠ is a cognitive–behavioral intervention aimed toward helping employees gain greater self–regulation in their jobs and lives. It assists conscious awareness of inappropriate reactions and managing responses in a more effective manner.
New Ways for Families® is a program for high conflict family law cases designed to save courts time, parents money, and protect children as their families re-organize. It is a positive option for families that gives parents a chance to change before big decisions are made.
New Ways for Mediation℠ is a tightly-structured, simple process for mediating potentially high-conflict disputes. It focuses on the teaching and reinforcement of simple skills for the clients to use throughout the process.
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