Mediation Plus Arbitration: A One Two Punch

September 5, 2016

punchReprint from www.lawyersweekly.ca

Family law practitioners in Toronto have long embraced the mediation/arbitration process as a preferred
method of resolving family law disputes. Med/Arb provides a timely resolution to difficult disputes before a knowledgeable third party. With the increasing delays in our court system, and the ever-present uncertainty of result, it may well be time for civil practitioners in all areas to seriously consider Med/Arb as an alternative for their clients.

In a mediation/arbitration agreement, the parties agree to use a third party neutral as a mediator, and
if the mediation is not successful, to employ that same third party as an arbitrator to finally resolve
the dispute within a defined arbitration process.

A Med/Arb agreement will usually provide that the arbitration phase is to commence within a specified
time after the failure of the mediation (typically 30 or 60 days). This focuses the minds of the
participants in the mediation and provides a quick determination of the outstanding issues in the
event that mediation is unsuccessful.

Critics of the Med/Arb process are concerned that during the mediation phase, the mediator/arbitrator
will hear positions and interests that might influence their ultimate decision.

The mediator/arbitrator will accordingly need to make it clear to the parties that his or her decision,
if one is required, will be based solely on the evidence presented within the arbitration phase.
Selecting a respected professional and providing a break between the mediation and arbitration
phases permits the parties to have confidence this will occur.

Judges within our legal system are frequently called upon to make rulings on evidentiary issues
within a trial and then to make decisions independent of the evidence which they may have ruled
inadmissible during a voir dire. We have confidence that judges can perform this task, and mediator/arbitrators
can do this as well.

Barry Fisher, a past chair of the ADR section of the Ontario Bar Association, says he’s surprised the
Med/Arb process is not more widely used by civil litigators. He notes: “The primary reason civil
litigators do not use Med/Arb is that they are not familiar with it. Once they became familiar with
age 2 mediation, they began to embrace it. The same will happen with Med/Arb, for the basic reason that
it works.”

A study performed by a group at the New York State University at Buffalo supports the conclusion
that Med/Arb is an effective and useful method to resolve disputes. Thirty-six disputes were studied,
including twelve using mediation only, twelve with a Med/Arb agreement providing for the
same neutral to conduct both phases, and twelve with a Med/Arb agreement providing for different
professionals in each phase.

The study found that the disputants’ motivation to settle their dispute at mediation was significantly
higher in the Med/Arb (same) model than it was in either of the other models. Disputants were
found to be more inclined to want to impress and follow the mediator within Med/Arb (same) and
were more inclined to make a new proposal or to make a concession than in standard mediation, or
where the arbitrator was to be a different person.

Interestingly, parties were also better behaved. Hostile or contentious behaviour was significantly
lower in the Med/Arb (same) model as parties concentrated on resolving their dispute.
Most importantly, there were a higher number of agreements achieved within the Med/Arb (same)
model than either of the others.

Estate litigation disputes could be the next logical step with respect to the expansion of Med/Arb.
Parties in an estate dispute have relationships and interests that go back decades. The disputes are
particularly painful, and years of litigation can permanently scar.

Within a Med/Arb process, a trained mediator/arbitrator can use the understanding they gain with
respect to the relationships between the parties to assist in crafting a solution during the mediation
phase. This knowledge should as well inform a decision which is respected and accepted by the parties
following the arbitration phase.

“In appropriate circumstances, I am a firm proponent of mediation/arbitration in estate disputes,”
says Howard Black, an experienced estate dispute mediator. “It brings finality to the proceedings in
a cost-effective way and there is the possibility that the third party neutral may well have more experience in the subject matter of the dispute than if the matter proceeded to a judicial hearing, depending upon the jurisdiction.”

Mediators conducting a Med/Arb process will need to be conscious of how they present to the parties
during the mediation phase to ensure that they maintain the confidence of the parties that they
have not predetermined the dispute.

Mediators will find, however, that the fact that the end date of arbitration is coming up 30 days or
60 days after the mediation focuses the minds of the parties and permits real and lasting settlements
to occur.

Richard Worsfold is a mediator and civil litigator who practises as a partner at Basman Smith. Jenny Bogod, student at law, assisted in preparing this article from Lawyers Weekly.

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