Hybrid processes combining mediation and arbitration are often highlyeffective in appropriate cases, yet they are chronically underused inOntario. Whether it''s a mediation/arbitration or anarbitration/mediation, final offer selection or parental co-ordination,parties in a dispute can often benefit from a more innovative approachto their problems.
"In my experience, the people I work with prefer a resolution they can author themselves," says Terry Kaskie, a mediator and arbitrator in Toronto, "but the desire for closure is an incentive to consider arbitration as a fallback if efforts to mediate fail."
Lawyer Thomas Bastedo, a family law mediator/arbitrator for Bastedo Stewart, Smith LLP in Toronto, finds there are two common reasons for mediation failing: a gross difference of opinion or a real difference in the impact of law.
"Under the terms of the med/arb agreement, either party or the mediator can say the mediation is over," explains Bastedo, "but the knowledge that the mediator/arbitrator has the ultimate power to decide puts pressure on the participants to make a bona fide attempt at mediation."
Despite its potential for final resolution, med/arb remains little used in Canada. One criticism is that the third party is wielding power over the parties because of the possibility of a ruling down the track.
"As a mediator, I don't hesitate to share with them my opinion," says Kaskie. "If one party is out of left field, and far from reasonable, I'll tell them.
"There is a view that true mediation has an individual in the middle, putting pieces of a puzzle together without putting in his or her own viewpoint," says Bastedo. "I find that family law people want evaluative mediation, where the mediator gets the attention and confidence of people and tries to channel them into a resolution. People really want to resolve it."
Rick Russell, a mediator at Agree Dispute Resolution in Toronto, identifies another deterrent as a perceived natural justice problem.
"When the same person moves back and forth between the parties to broker a deal, that person may learn something in caucus which may cause prejudice when he or she becomes the judge. A judge can't speak to parties alone."
Russell thinks this concern is overstated and that med/arb should be used more widely.
Bastedo agrees. "It is probably true that there is a conflict in the role. It is inevitable that you will learn something in mediation that will colour the arbitration, but people are usually confident the arbitrators can put their views out of the picture. A little imperfect justice is better than perfect justice at great cost. A perfect system would be a three-week trial!"
One model that attempts to address this concern is arb/med, where the person who will ultimately be the decision-maker makes the decision at the start. The hearing is adjourned and the award is put away in a sealed envelope or held by an independent person if requested. Next day the parties sit down and mediate.
"This addresses fairness and evidentiary concerns," says Russell. "The mediator doesn't hear anything off the record. During the mediation you can say, 'This is persuasive evidence.' The mediator has lots of leverage because they are already the ultimate decision-maker. If mediation fails, the arbitrator gives his award."
Dr. Barbara Fidler, a Toronto psychologist and arbitrator, describes this as a crisper, cleaner model that purifies the process and addresses concerns about the dual role of the mediator/arbitrator.
"These disputes tend to settle because the participants have a sense of what the arbitration decision will be."
There is a cost deterrent to using this model, which gives med/arb the advantage.
"In med/arb, if you resolve it at the mediation, you don't have to pay for arbitration," Russell points out. "Arb/med is the Cadillac - and you pay something extra for a Cadillac. Med/arb is the Toyota - very functional and efficient but with compromises built in. If you can live with the compromises, you get value for money."
Another hybrid form of ADR is "final offer selection," which Russell describes as a derivation of med/arb.
"It's an old arbitration technique used for baseball salary negotiations. Both parties develop a brief and prepare a third-party presentation designed to show the arbitrator their offer is the fairest."
The last offer of each party becomes the basis for the arbitration. The arbitrator is limited to choosing the offer that is most fair.
Russell points out that in other types of ADR there is no strong incentive to be fair.
"The name of the game is to put your strongest case forward. If you're going to throw the dice, you might as well go for the jackpot, not the compromise. In final offer selection, it is of premium advantage to do away with claims that are not legitimate or not strong. There is a real dynamic to negotiate genuinely and with energy, to compromise and be reasonable. Most times in final offer selection, the offers get so close to each other, the parties use the money to bridge the gap instead of paying me to write the award."
The limiting feature of this model is that it only works with a few variables, for example, money and benefits.
"If there are 10 issues that one side is right about, 10 issues that the other side is right about and 10 issues that neither side is right about, the arbitrator is stuck with picking the final offer," says Russell. "It's appropriate for something like a salary dispute - how much to pay or how to structure for tax - or in a commercial lease renewal where you arbitrate the issue of how much rent. Both sides fall over each other to be more reasonable. They use the best assessors and the most up-to-date information."
A completely different arrangement for a totally different field is a derivation of med/arb called parental co-ordination. This is limited to high-conflict family law matters where the parties have endless disputes over minor details of the parenting plan. The co-ordinator is appointed for a period of time to manage the family. Anything the parties can't agree on through mediation is arbitrated on by the co-ordinator, often just relying on the submissions of the parties.
"The differences between parental co-ordination and med/arb are based on the scope of authority," explains Fidler. "Parental co-ordination is limited to small things in an existing parenting plan and includes an educational component so the parties can learn to solve their own problems."
All of these hybrids could be highly effective if they were matched to the appropriate dispute, and if lawyers and their clients were willing to give them a go.
If you've ever heard of a hybrid process at all, it is probably med/arb, where the same person is the mediator and the ultimate decision-maker if mediation is unsuccessful. This is a popular choice in the public sector for labour relations and is also favoured in family law matters. It is chosen when parties truly wish to end a dispute once and for all.