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Med/Arb – Will Recent Ruling Change Practice

February 24, 2015

In a recent ruling, Justice Gray heard the appeal as to my jurisdiction on a matter in mediation/arbitration and also ruled on my impartiality.

He found that the matter subject to dispute was within my jurisdiction, but that given a reasonable apprehension of bias, I would be removed as mediator/arbitrator.

He discusses the challenge of hearing something in the mediation phase of service and the role of the service provider in mediation/arbitration.

As per Justice Gray’s analysis:

[49] As noted earlier, mediation/arbitration is of somewhat recent origin. Ordinarily, if the parties are to engage in both mediation and arbitration, they will feel more comfortable if a different person is used to perform each function. That is because the two functions are instinctively considered to be mutually exclusive. As a general proposition, that is reflected in section 35 of the Arbitration Act, 1991, which reads as follows:

35. The members of an arbitral tribunal shall not conduct any part of the arbitration as a mediation or conciliation process or other similar process that might compromise or appear to compromise the arbitral tribunal’s ability to decide the dispute impartially.

[50] Section 35 of the Act may be waived, as it was here. If it is, it is open to the parties to use the same person to perform both functions.

[69] In order to effectively mediate, the person appointed must engage in a process that has a good deal of informality. Mediative techniques include persuading, arguing, cajoling, and, to some extent, predicting. Mediation is a process to secure agreement, if possible. All of those techniques, as well as others, will come into play in trying to secure agreement.

[70] If the mediator/arbitrator must move to the arbitration phase, it cannot be expected that he or she can entirely cleanse the mind of everything learned during the mediation phase, and of every tentative conclusion considered, or even reached, during the mediation phase. However, at a bare minimum the parties are entitled to expect that the mediator/arbitrator will be open to persuasion, and will not have reached firm views or conclusions.

In his Judgment, Justice Gray included information from my med/arb service agreement that takes into account that not only can the service provider not entirely cleanse the mind, but in this case, the service provider is well entitled to use information obtained in the mediation phase to inform the arbitration phase:

In his role as Arbitrator, the Service Provider may rely on any information, both written and verbal, that the parents have disclosed (including written records) during attempts to resolve the issues up to that point in the process prior to the commencement of arbitration, during the non-decision making component. Notwithstanding, the parents shall provide full submissions, either verbal or in writing, and not assume any prior information provided will be taken into account in the decision-making process. (Direnfeld – Med/Arb Agreement)

The parties had independent legal advice and provided Certificates of same. They were screened for domestic violence and power imbalances as per the Act. The Agreement was reviewed in part again with the service provider and the parties signed another agreement with the service provider indicating they received Independent Legal Advice and agreed to the terms of service. In short, “I’s” were dotted and “t’s” were crossed. The parties understood the nature of the agreement and service process.

However, Justice Gray was of the opinion that I would not meet the expectation that in the arbitration phase, I would be open to persuasion. Given this, the issue then becomes, how far can a mediator go in terms of delineating the issues and providing opinion as to potential outcomes?

From my perspective, people enter into med/arb and waive s35 (above) specifically because they want the service provider to advise accordingly as per the information available to that point in service. The value in this is that people may then be compelled to craft an agreement between themselves with an appreciation that those agreements entered into voluntarily are better followed and more durable than decisions imposed upon them.

Further, the med/arb process in part precludes people from simply failing mediation and using it as a dry run in the run up to arbitration with another service provider. Med/arb is an antidote to those who may simply abuse mediation and believe they can then use a different tactic in arbitration with a new provider who wouldn’t have the history.

Justice Gray went on to set out a process to determine a new arbitrator:

[88]  With respect to the specific arbitration that is to occur, I think it should be conducted by an arbitrator with legal training, preferably an experienced family law practitioner who can hear the matter fairly quickly.  If the parties cannot agree upon the identity of an arbitrator for that purpose, I invite counsel to each supply me with the names of three proposed arbitrators within ten days, and I will select one.

With regard to his view of appointing an experienced family law practitioner as arbitrator, what does that say about his view of non-lawyer arbitrators generally? Further, when people choose a non-lawyer, are they not doing so because they value the expertise of the of the chosen professional? I am of the view that people come to mental health professionals, social worker and psychologists for med/arb to hear and manage family disputes because they recognize these are relationship, family and child development issues more so than matters of law. If the judiciary is going to steer these cases from non-lawyers to lawyer-arbitrators, then will the clinical expertise and acumen needed in deciding those matters be lost to points of law? How does that work for the well being of the child?

This ruling may send a chill through the med/arb community in terms of how facilitative, evaluative, informative or persuasive a mediator may be in the function of this service ahead of arbitration.

Should there be a separation of church and state? Is med/arb inherently flawed or does Justice Gray’s view of med/arb as a service of somewhat recent origin, miss the mark. Can professionals whose primary expertise is in areas other than law, act as arbitrators?

For the time being anyway, I will likely be more circumspect in terms of the conveyance of my views on matters that may proceed to arbitration. That may mean that more matters may then move to arbitration that could have been settled in mediation.

As for the general public, when a party waives s35, Justice Gray forewarns, “If the mediator/arbitrator must move to the arbitration phase, it cannot be expected that he or she can entirely cleanse the mind of everything learned during the mediation phase, and of every tentative conclusion considered, or even reached, during the mediation phase.”

Med/Arb – inherently flawed or a good service?

I am Gary Direnfeld and I am a social worker.

Gary Direnfeld, MSW, RSW

Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships.

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