Alternative Dispute Resolution

Alternative Dispute Resolution

Often issues can be best resolved directly between you and the company. The CER is available to help facilitate resolution of a dispute. Alternative dispute resolution (ADR) staff can help parties better understand the issues, work through disputes, and find practical solutions. ADR is collaborative, interest-based, confidential, and voluntary. All parties to the dispute must consent to ADR.

Questions you may have

What is ADR?

ADR stands for alternative dispute resolution. It is used to help parties work together to resolve a dispute. Those trained in ADR may use various tools and techniques to help parties reach an outcome that is acceptable for both parties. This may include negotiation, facilitation, workshops, or mediation.

When ADR is used, parties have more ownership over process and outcomes. ADR is also more cost-effective and efficient way to address issues about a project than other regulatory processes. The CER has a responsibility under the CER Act to provide ADR for disputes about activities and projects we regulate.

Who is ADR for?

The CER recommends ADR to anyone who needs help resolving an issue with a company about a project or facility we regulate. We recommend it as an option to resolve a dispute before considering other formal processes the CER may provide.

Those we refer to ADR include:

  • landowners
  • individuals
  • Indigenous peoples and communities
  • other regulated companies

What issues can ADR address?

We want to hear from you if you are having trouble working out any issue with a company we regulate. This means any company operating a federally regulated pipeline, international power line, or offshore renewable energy project in Canada.

Some issues we have helped address include:

  • damage to property
  • compensation matters
  • detailed route location
  • right-of-way crossings
  • terms in negotiated agreements
  • steps in the land acquisition process
  • post-construction reclamation

When may ADR be used?

ADR may be used at any time during the life of a project to help parties resolve a dispute that they are unable to resolve themselves. ADR may be used before a formal hearing or at the same time as a formal hearing. In situation where ADR happens in parallel to a hearing, parties may withdraw from the hearing if agreement is reached.

Why use ADR?

ADR works. About 98% of disputes referred to ADR are resolved outside of a more formal hearing process.

ADR gives people a chance to tell their story as they see it, and it promotes a better understanding of the issues. It is an opportunity to bring people with the right level of decision-making authority together to resolve the dispute.

It also allows:

  • people to discuss issues in an open, confidential, and respectful manner
  • better locations: an ADR session can be in a location that works for you
  • more convenient timing: we can work around your schedule
  • face-to-face discussions that help build stronger relationships
  • flexibility and responsiveness to the needs of those involved
  • participants to have more control over the outcome of the decision
  • a more efficient process
  • a more cost-effective means of addressing issues than a hearing.

Who pays for ADR?

Discussions about costs usually take place before the actual ADR meeting is held, in a meeting called a pre-ADR meeting. During this meeting, parties speak with each other about costs that might need to be covered and whether they are reasonable for participation in the ADR meeting. This may mean costs for travel or lawyers, if necessary. For disputes between an individual or a group and a company, it is common for a company to pay for costs that are reasonable. Where a dispute is between companies, costs are typically shared.

The CER does not charge for ADR it provides. Under Section 73 of Canadian Energy Regulator Act, we have a responsibility to provide ADR to help resolve disputes for matters under our jurisdiction if agreed to by all parties.

Is ADR confidential?

Written and verbal interactions during ADR between parties are both confidential and without prejudice.

  • Confidential refers to what happens to information one party may know about the other party. ADR can only be effective if parties are willing to have an open and honest discussion about the issues. To feel comfortable in the discussion, parties must agree to treat the information disclosed as being confidential. This means that information shared during ADR, such as personal information, cannot be used in a hearing or other proceeding without the consent of the other party. However, information about public safety, environmental protection, and resource conservation cannot be held confidential. This is information is required by the regulatory process.

    The parties agree on the information they want to keep confidential. Matters that could remain confidential include:

    • financial disclosures
    • compensation made to a landowner
    • the conditions or circumstances under which a party would remove an objection
    • the mitigating measures an applicant would offer in order to have an objection removed
    • individual health records
  • Without prejudice is a rule used to encourage discussion without weakening a party’s position in a dispute. It is a phrase that says that even though you may be trying to reach an agreement you are not admitting, conceding, or waiving any arguments or rights. As a result, any statements made during an ADR meeting, such as an admission, concession, or offer to settle, cannot be raised by the other party at a hearing or other proceeding without the consent of the other party.

How does ADR get initiated?

The process begins when an issue that is causing a disagreement is identified, either by one or more concerned parties or the CER.

ADR staff then works with the parties to assess the situation. Together with the parties, staff look at the nature of the conflict, the relationship between the parties, and the current status of any negotiations that may have already taken place. Parties must be able to agree to ADR and on the best approach for resolving the issue before any ADR meeting can take place.

What is the ADR process?

ADR process

Description
  • Parties agree to ADR
  • Pre-ADR meeting
  • ADR sessions
  • Have the issues been resolved?
    • Yes – Agreements reached between parties
    • No – Request issue be heard by the Commission

Step 1: Parties agree to ADR

Together with the parties, ADR staff look at the nature of the conflict, the relationship between the parties, and the current status of any negotiations that may have already taken place. Parties must be able to agree to ADR and on the best approach for resolving the issue before any ADR meeting can take place.

Step 2: Pre-ADR meeting

Before parties can begin work to resolve their dispute, they must first work out a plan for the ADR meeting. This plan covers matters related to process and defines the nature and extent of the dispute.

This step is essential. It helps parties make an informed decision about whether ADR is a process they want to use to resolve the issue. If parties decide to proceed, it helps them focus during the actual ADR meeting and gives the parties a better chance at resolving the dispute.

  • Topics discussed:
    • the key issues requiring resolution
    • options available to resolve the dispute
    • the role of advisors (lawyers, CER staff, and experts)
    • who should participate in the discussion and the level of authority required
    • meeting locations, dates, and timelines
    • matters of confidentiality, documentation, and disclosure
    • costs for the ADR process
    • further process steps to be taken
  • Location: Pre-ADR meetings are typically held over the phone, but they could take place face to face.
  • Timing: Meetings need to respect other commitments parties may have, such as time for seeding or harvesting.
  • Who is present: A mediator will be present to assist the parties. Lawyers or other representatives are not required, although parties may invite them if they wish.
  • Agreement to mediate: After the pre-ADR meeting, parties make a decision about whether to proceed with ADR.
    • If the parties agree, they will work with the mediator to draft a document called the agreement to mediate. This document states that the process is voluntary and that the information disclosed is confidential and without prejudice to the other party. The agreement will also identify any exceptions. The agreement to mediate can be updated as needed. It is then signed by the parties before the ADR sessions begin.
    • If the parties do not agree, they may choose another method of resolving the issues, such as a hearing.

Step 3: ADR sessions

In this step, parties begin following the process set out in the agreement to mediate during the pre-ADR meeting.

The goal: Parties focus on the issues and work toward finding mutually acceptable solutions.

How does this happen? For ADR to work, discussion must be collaborative. Parties must also be willing to share all relevant information. This way, parties can fully understand each other’s objectives and interests.

Step 4: ADR Agreement

While the goal is to have parties come to an agreement on all of the issues, some issues may remain unresolved.

  • For agreements reached on an issue, the mediator works with the parties to draft an agreement. Both parties then sign the agreement.
  • For issues that remain unresolved, the CER Commission uses applicable regulatory or legal processes, such as a hearing, and makes a decision.

The CER considers it important that the parties meet or uphold commitments made through ADR. The CER Commission may take the results of the ADR process into account when making a decision, order, or recommendation and may refer to them in the decision, order, or recommendation. No part of the ADR process will be made public unless the parties agree first.

Need to speak with an ADR specialist?

We want to hear from anyone who has a concern and is having trouble finding a solution. Contact one of our ADR specialists to learn more about alternative dispute resolution or to get started with the process.

Email: ADR-RED@cer-rec.gc.ca
Phone: 403-292-4800 or 1-800-899-1265 (toll free)
Mail: Canada Energy Regulator
Suite 210, 517 10th Avenue SW
Calgary, Alberta  T2R 0A8

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