Gary Joseph says some years ago, he dodged a legal bullet. He was sitting in a breakout room with a family law client. A mediator-arbitrator would come in to talk to them before going to another room to speak to the other party in a process similar to shuttle diplomacy. “The mediator came into our room and he began talking about the evidence that we have and our expert report and [started] making some negative comments about the expertise of our expert and some other things that our expert did,” Joseph recalls. “When he left the room, my client turned to me with just daggers in his or her eyes and said, ‘What have you done to me? How could this person possibly be fair to me after telling me that my expert report has 16 different holes in it?’”
“That client was dead right,” adds Joseph.
Had that client not approached their spouse later and worked out a deal in their matter, Joseph says he may have well faced a lawsuit initiated by his client.
“There will be lawyers sued very significantly for entering into these agreements,” he says. “It’s our responsibility to ensure that the client is protected at all times and I don’t know if [in med-arb], the client is protected at all times.”
While mediation-arbitration in the family law context is a fairly recent phenomenon, there’s been a growing controversy around its use. The thrust of the concern is that mediators, who are privy to a lot of sensitive information during the settlement phase of proceedings, should not later become arbitrators of the same case.
Some lawyers are uncomfortable with the role switcheroo, something they say the Family Law Rules have rightly barred in the court system. “Those rules specifically addressed this problem and said, ‘No. If you’re a settlement conference judge, you can’t do the trial,’” says Joseph. “Many senior members of the family law bar have felt that they can rise above that problem; that they are better, they won’t be tainted, they won’t be influenced. They [believe they] can engage in med-arb and totally disabuse themselves of everything they have heard in mediation and then arbitrate the case.”
Lawyer Patrick Schmidt, a partner at Thomson Rogers in Toronto, says there would be “outrage” if a civil judge who heard pre-trials said he was going to sit as a trial judge in the same matter. “I think the process, combined mediation-arbitration, lacks a certain amount of integrity,” he says.
The ADR Institute of Canada says it has 2,000 members, but it wasn’t able to provide the number of people specifically doing med-arb in Canada.
While vociferous opponents like Joseph cast doubt on the integrity of the process, others hail it as an efficient and cost-effective alternative to drawn out court proceedings.
The Ontario Court of Appeal has recognized the process as a legitimate method of dispute resolution in family law, says Lorne Wolfson of Torkin Manes LLP, whose practice is largely family law med-arb.
First, Wolfson says, the debate is limited to a small number of cases that are not resolved in the mediation phase of med-arb. Although there’s no reliable data, Wolfson says anecdotally, 80 to 85 per cent of cases are settled, making the bias in arbitration argument moot in a majority of cases. That’s a “phenomenal track record,” Wolfson adds. “I would say don’t throw the baby out with the bathwater. Don’t throw it out because there may be problems for the 15 per cent.”
The med-arb process is also voluntary, he says. “Nobody forces anybody to get into med-arb, unlike the court system where you can be dragged into it because the other party wants to go. If you don’t like it, don’t go into it.”
Also unlike the court system, which assigns parties a judge arbitrarily, participants in med-arb choose the professional who works with them, allowing them to pick someone with specific cultural or other specialized knowledge.
As to hearing details you shouldn’t be hearing as an adjudicator, proponents of the med-arb process argue judges do it, too — they sometimes listen to evidence they later choose to exclude. Voir dire hearings are an example, they say. “That argument is thrown out all the time,” says Joseph. While it’s true that judges hear evidence in voir dire, that’s different from sitting in a room with parties for hours and hearing their thoughts, strategies, and positions, he says. “You hear the grain of the case, often. You hear about offers, you hear about positions.” He says it’s “humanly impossible” to later disabuse yourself of what you’ve heard.
But there’s a simple solution to that, says Wolfson: get two different people to do the mediation and arbitration portions of the proceeding. He, adds, however, that he personally prefers the one-person model for efficiency and cost saving.
Wolfson says in recent years, med-arb agreements have advanced to allow parties to see exactly what they’re getting into, including some of the limitations of the process. “When people commit to med-arb, why are they committing to it? They’re paying a mediator-arbitrator out of their own pocket when the government gives you a free judge. They’re paying for this process because they want to know there’s finality,” Wolfson says. “They want to know that within a reasonable period of time — six to eight to 10 weeks — there’s going to be a resolution. That’s the guarantee that you get in med-arb.”
The debate around this ADR scheme was recently reignited after an Ontario Superior Court judge removed a mediator-arbitrator from a case for creating an impression that he “had already made up his mind on issues that were very contentious” prior to an arbitration hearing, said Superior Court Justice Douglas Gray in McClintock v. Karam.
Gray cited some excerpts from a meeting Dundas, Ont., mediator-arbitrator Gary Direnfeld held with the sparring parents of a 10-year-old girl. In those comments, Direnfeld essentially tells the mother he’ll arbitrate in favour of the father, who requested custody of the child, since the mother has allegedly tried to alienate the girl from her father. “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,” Gray wrote. “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.”
Even opponents of the process admit “top notch” lawyers are doing this work. Still, they say that doesn’t negate the blurred lines. Joseph says he’s uneasy about the fact that lawyers, who can be “chummy” with other lawyers, could sit as mediator-arbitrators in cases involving their pals. The kind of distance that marks the rapport between the bar and judiciary is missing in med-arb, he says. “No judge will come to my house this weekend,” he adds. “It’s a totally different relationship.”
The other issue is regulation. One does not need to be a lawyer to become a mediator-arbitrator. Although the ADR Institute has guidelines for mediators and arbitrators, it does not act as a regulator of the profession. The institute has a disciplinary process, but its executive director Janet McKay says it rarely receives complaints. At worse, the institute can deny membership, but membership isn’t a prerequisite to practise. Members of the ADR Institute are required to have a minimum of 40 hours of training in addition to some work experience.
B.C.-based family mediator Carol Hickman, along with her colleague Arlene Henry, recently began offering courses for mediator-arbitrators. Hickman, who completed her LLM thesis on med-arb a year ago, believes the course is the first one in North America offered specifically on med-arb. Everything comes down to training, says Hickman. “You’re not just a mediator and you’re not just an arbitrator and mushing the two together,” she says. “You really need to realize that this is a new process.”
Through the med-arb course, Hickman hopes participants consider three important concepts: Caucus, bias, and confidential information (CBC). “You have to be very conscious of caucus and what you do in caucus,” she says, adding when a mediator-arbitrator is meeting privately with one party, the other party may be suspicious of what went on.
Flowing from that, the mediator-arbitrator can become privy to confidential information, says Hickman. “And so what do you do with that confidential information? Do you completely disabuse your mind of it? Do you disclose it?” In Australia, the law is that you must disclose the confidential information you’ve become privy to while acting as a mediator-arbitrator, says Hickman.
The third concept is bias, or the appearance of it. Mediator-arbitrators are encouraged to consider the potential pitfalls of making “evaluative comments” that might give an appearance of bias, Hickman adds. Those comments include telling parties they will lose or win.
In the end, it’s all about choosing the right professionals for the job, according to Hickman. David McCutcheon, national director of the ADR Institute, agrees. “The really skilled mediators and arbitrators, the people who are really good at it, I think do a good job,” says McCutcheon.
Although mediation-arbitration is not a regulated profession, McCutcheon is not concerned about lack of competency. “The market tends to sort out who the good people are,” McCutcheon says. “I think the market is pretty sophisticated; lawyers representing clients have a pretty good understanding of who is good and who is suited to their case.”