Mediation has increasingly gained traction and is becoming an important alternative means of settling legal disputes in Canada, but mediators themselves remain largely unregulated.
“Mediation, as part of a broader collection of ADR [alternative dispute resolution] tools, is playing an increasing role in our justice system today. There’s no doubt that there is a privatization of justice that is happening,” says Trevor Farrow, who focuses on the administration of justice as academic director of the Winkler Institute for Dispute Resolution at Osgoode Hall Law School.
“One of the concerns is making sure that the professionals involved are properly trained and potentially properly regulated.”
The need for mediation clearly exists, with only seven per cent of those with legal disputes turning to the formal court or tribunal systems, which are often considered costly and time-consuming routes, he adds.
As mediation has matured into an acceptable alternative, it has bred ADR organizations that offer training and set out ethical expectations, certifications and provide some guidance.
That has led to self-regulation, which is supported by market forces — if a mediator doesn’t prove their worth, further work is unlikely to follow.
Unlike the courts system, mediation is a private process that is confidential and not subject to public scrutiny.
It is also a non-adversarial process that usually involves willing parties interested in achieving a settlement instead of having a decision imposed upon them by a court, says Paul Morrison, a senior litigation partner with McCarthy Tétrault LLP in Toronto.
“To a certain extent, the process regulates itself because people just won’t use that person as the mediator,” says Morrison, whose corporate/commercial cases almost inevitably include mediation at some point in the process.
The Canadian and Ontario ADR institutes as well as family and other mediation organizations impose their own standards and codes of ethics, which play a role in consumer protection.
They also have educational requirements, so someone with a chartered mediator designation, for example, will have met those obligations.
“I think it’s more than satisfactory, actually. The reason that it works is that successful, good mediators get the repeat business,” says David McCutcheon, a mediator and arbitrator who practises environmental and administrative law and is director and past president of the ADR Institute of Canada and the ADR Institute of Ontario. “If they’re negligent, they can be sued like anybody else.”
Many will carry insurance, often through a professional organization.
And they also protect themselves through retainer agreements indicating where they are excluded from liability.
The Ontario Mandatory Mediation Program also requires certain credentials of mediators and offers a set of guidelines taking in mediation experience, training, education, familiarity with the justice system and references.
It also has a score sheet available online to help mediation committees evaluate applicants.
“My concern is if you’re going to make it really restrictive, who’s going to regulate it,” says Brampton arbitrator/mediator Colm Brannigan. In addition, most mediators are lawyers who are already regulated by their governing bodies.
The criteria required by the ADR organizations and the best practices approach they adopt reflects what Brannigan believes is important in the profession. And he wonders if certifications by these organizations would be a more practical approach than “full-blown regulation.”
A more basic issue Brannigan sees is how to define exactly what mediation is because there isn’t an agreement within the mediation community on its definition. And an ethical framework should be in place before regulation is considered.
But he does see some benefits to regulation, which includes an assurance to the public that their interests are a primary consideration and there would be universal standards.
“To me one of the biggest guarantees in making sure that the process, the results are OK, would be to have a lot of emphasis on the parties either having, at the very least, legal advice or legal representation for any binding agreement,” which generally occurs in practice, adds Brannigan.
Often, agreements have a clause allowing for legal review for the party that doesn’t have their own lawyer.
While the Law Reform Commission has expressed a concern over the lack of regulation in the past, it is not considered a burning issue among those involved in mediation.
B.C. does provide standards in its new family law regulations, defining who is entitled to practise as a mediator and arbitrator in family law.
Although, there is no disciplinary process or organization attached to it.
How it is effective is to give participants of mediation the ability to extricate themselves from the process and perhaps challenge the result.
“The standards that are set are really quite high, which is, in my view, entirely appropriate given the seriousness of family law disputes,” says John-Paul Boyd, executive director of the Canadian Research Institute for Law and the Family.
“It’s better than nothing and, frankly, it’s a great deal easier to allow people to police themselves than go to the trouble of establishing some sort of organization.
“Market forces will prevail. If somebody is a lousy mediator, that person isn’t going to get a lot of business.”
The question Farrow looks at is whether formal regulation would pass the cost-benefit analysis.
“How much . . . is currently at stake and are there bigger issues at stake in the justice community that perhaps we should be focusing on before we spend social and economic capital on trying to regulate mediators?” he asks.
“Before committing to creating a new oversight body, we’d need a better picture of what are the current issues . . . at stake right now in terms of the cost of not regulating it.”
He’d like to know the number of situations in which users are poorly served as well as the kinds of outcomes obtained through different types of mediators.
In the absence of detailed study, he says, there can be no absolute determination on the need. And while the idea of regulation has been explored and law societies have looked at the adequacy of lawyers working as mediators, Farrow says he isn’t aware of any detailed examination of the issue.
At the same time, there doesn’t seem to be a crisis crying out for the need of regulation.
Although, mediation is expected to play more of an important role in how disputes are resolved and the number of people relying on it is increasing, so that question isn’t expected to disappear.
“By and large, mediators have become a pretty solid professional group. In the early days when qualifications were a little less rigorous and there weren’t codes of ethics, I think the people actually had a pretty broad range of behaviours. I think as the mediation profession has matured, the bad apples have been pretty much taken out of the profession,” says McCutcheon.
“It definitely has become a mainstay profession now.”