Alternative business dispute management services

The Business Dispute Management (BDM) program offers a variety of services to help with the prevention, early identification and resolution of business disputes where Public Services and Procurement Canada (PSPC) is the contracting authority. Explore services the program provides.

Management and resolution of business disputes

Alternative dispute resolution (ADR):

• is a means of settling a dispute outside of the courtroom
• involves a dispute resolution practitioner who assists those in a dispute to resolve the issues between them
• is a voluntary process wherein the impartial third person (practitioner) helps parties arrive at a result that works for everyone involved

A business dispute is any disagreement concerning procurement or contracting activities. To help with business disputes, we:

• receive concerns, enquiries and requests for intervention, about business disputes, during any phase of the procurement or contract life-cycle
• offer conflict prevention and alternative dispute resolution services to anyone involved in a procurement or contract process
• listen and offer options to manage the business dispute and facilitate communication
• help parties arrive at a mutually agreed upon resolution
• help prevent similar issues by identifying potential systemic concerns and make recommendations to PSPC
• provide outreach and awareness activities

We cannot:

• make decisions as to how the business dispute will be resolved; this remains with you and the other parties involved
• advocate on behalf of or represent anyone involved in a dispute
• act as substantive authorities or technical experts
• provide opinions on who is right or wrong
• change or replace laws, rules, policy or administrative decisions
• disclose information related to the content of disputes
• get involved in any issue before the courts or subject to a review or investigation

Unbiased and confidential

Our ADR practitioners serve as a neutral third party to facilitate dialogue and do not render decisions nor take sides. They are always willing to explore other options at any time if you have a concern. As well, any information shared with your practitioner is kept private unless you give permission to do otherwise.

We believe that it is in the best interest of all involved for the practitioner to be free of bias and internal pressures. The program is separate from the operations of PSPC.

Awareness sessions

Would you like us to speak at your next team meeting, conference or annual retreat? Or are you interested in hearing more about how we can help organizations manage business disputes? Contact the Business Dispute Management Program to schedule an awareness session.

Our alternative dispute resolution services

Consultation

Consultation is a meeting with a practitioner to explore the options available and determine which ADR service is best suited to address the dispute at hand.

Key features

Overview

Meetings delivered either:

• in person
• by phone
• over WebEx
• using tele or video conference 

Use

Proactive measure to obtain guidance and advice on dispute resolution options.

Considerations

• The other parties are not involved at this point, it is an initial and individual approach to dispute management
• Participant(s) must be open to exploring new options and thinking outside the box

Expected outcome

By the end of the consultation, you should be able to use the information you've received to better understand the options available to you so you may decide how you want to proceed to address the conflict.

Scenario

For example, you're a supplier, client department or contracting authority, that's experiencing challenges during the performance of a contract. You want to find out what you can do differently, if anything.

How we can help in this scenario

A consultation can help you determine the options and resources available to you so that you can reflect on your next steps.

Coaching

Coaching is a meeting to help deal with a dispute situation. It may be done on an individual or group basis and may consist of a series of meetings where the coach helps define how to address the issue going forward.

Key features

Overview

Meetings delivered either:

• in person
• by phone
• over WebEx
• using tele or video conference

Uses

• Teach individuals risk management skills to help self-manage disputes
• Proactive and preventive measure
• Improve dispute management competencies

Considerations

• Sessions can be paired with ongoing professional skills development
• Participants must be committed to learning
• Individual approach for early and direct prevention or management of dispute

Expected outcome

By the end of a conflict coaching session or after multiple sessions, you should be better able to proactively prevent or self-manage a conflict situation.

Scenario

For example, you are a client Government of Canada department or a PSPC contracting authority. You need to give feedback to someone involved in the project about delays in their work. You value the work they do and wish to maintain a good rapport but are aware that you have difficulty communicating effectively.

How we can help in this scenario

We can assist you in preparing for this discussion by providing:

• feedback on your proposed plan of action
• coaching to help develop key messages to improve your intended outcome

Facilitated discussion

Facilitated discussion is a meeting between parties to a dispute, chaired by a neutral ADR practitioner, to discuss the dispute and possible solutions.

Key features

Overview

Multi-party discussion which:

• looks to the future
• focuses on consensus building
• enables brainstorming
• allows for tailored resolution
• results in parties having better insight into each other's perspectives

Use

Prevention and early dispute resolution.

Considerations

• Allows for a win-win outcome
• Parties actively participate in the process and retain control of the outcome
• Allows for communication with other participants in a non-confrontational setting
• Progress can be made by continuing the discussion with the assistance of an ADR practitioner
• Allows for the preservation of business relationships
• Outcome requires good-faith participation by all parties
• Takes into account both the legal rights and the interests of the parties
• Wider range of possible outcomes such as a better understanding of the others' perspective, change in practices or process
• Outcome depends on the settlement authority of the participants

Expected outcome

By the end of a facilitated discussion, you will have participated in a conversation in a non-confrontational setting. This will provide parties with an opportunity to better understand the issues. Further, it allows parties to retain control of reaching a mutually acceptable outcome with a custom made solution.

Scenario

For example, you are a contractor in a long-term contract. You are experiencing disagreements in the interpretation of the contract's terms and conditions or contradicting instructions from the client Government of Canada department's project authority to address executing on the deliverables. You know that leaving this unaddressed will impact your ability to deliver on this project and increase costs incurred and frustration.

Not all of the concerns raised succeeded in a resolution. There has been little progress on the remaining concerns.

How we can help in this situation

We can help parties progress in situations such as these by chairing a meeting wherein you and the others will have an opportunity to be heard and understood, and collaboratively discuss options to agree on a way forward.

Mediation

Mediation is a formalized facilitated discussion process.

Key features

Overview

Same key features as facilitated discussion, plus:

• agreement to mediate is signed by everyone participating in the process
• settlement is recorded in writing in the spirit of a legally binding contract 

Use

Most often for formal claims, complaints, and disputes.

Considerations

Same considerations as facilitated discussion, plus:

• prior to the mediation session, each party provides the mediator and the other parties with the relevant documents explaining their written perspective of the dispute

Expected outcome

In addition to the outcomes of a facilitated discussion, the parties can reach a settlement that becomes a legally binding contract after it is signed or is incorporated into an existing contract.

Scenario

For example, you are a contractor and have been patient in receiving the final payment for the work performed and delivered. The contracting authority is asking for further supporting documentation to substantiate releasing the final payment. You feel you have provided all that was required and are unclear as to what else they are looking for. You are becoming frustrated with the process as it is time consuming, repetitive, and impacting your ability to receive the final payment owed to you and manage your business.

How we can help in this situation

We can assist you by offering mediation services so that parties can have a meaningful discussion to:

• get a better understanding of the issues as well as their impacts and expectations
• identify and give serious consideration to finding a mutually viable resolution to outstanding contract issues

Arbitration

Arbitration is a formal process where parties involved in a dispute agree to have a neutral arbitrator decide the outcome.

Key features

Overview

The process:

• is conducted as a file review or an in-person hearing
• looks to the past
• focuses on facts and legal rights
• results in an outcome or decision by an arbitrator

Use

When all of the parties' previous efforts to resolve the issue have not resulted in a mutually agreed upon outcome and the only other option left is litigation.

Considerations

• Process takes into account both the legal rights and the interests of the parties
• Participants determine the issues that are to be decided by the arbitrator
• Arbitrator provides binding outcome; appealing the arbitral decision is difficult
• Specific rules or procedures, similar to trial, may apply
• More costly and time consuming than other ADR processes

Expected outcome

By the end of the arbitration process, the dispute is resolved through a legally binding decision issued by the arbitrator.

Scenario

For example, parties' previous attempts to reach a mutually beneficial agreement were unsuccessful. After assessing their options, they've decided to go to arbitration before resolving the matter in court.

How we can help in this situation

We can assist in situations such as these by managing the joint selection process for a private sector arbitrator.

Learn more about these services

Want to learn more about our ADR services? Or want to get started? Contact the Business Dispute Management Program.