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Letter: Lawyer touts benefits, responds to critics of med-arb

|Written By Philip Epstein

Gary Joseph has set out his personal views as to why he eschews mediation-arbitration and why he is uncomfortable with the process (see “Lawyer disturbed by med-arb,” Jan. 16). I think his letter deserves a response from a mediator-arbitrator.

I agree that counsel and parties should not use a process that they are not comfortable with. Mediation-arbitration should be a process that is freely chosen by counsel and the parties after a full explanation of the process and the alternatives available.

Let me firstly correct some errors. Arbitrators who resolve family law disputes in Ontario are indeed regulated by the regulations promulgated by the attorney general shortly after the Family Statute Law Amendment Act was passed. Those regulations require specific training and updating of it every two years.

Most arbitrators are also members of professional bodies such as the ADR Institute of Ontario, which has a code of conduct.  Virtually all mediators are members of the Ontario Association for Family Mediation, which has a very specific code of conduct and also requires training.

Accredited family mediators under the Ontario Association for Family Mediation must take very extensive training during which they are mentored and must follow a strict code of conduct.

The fact is that counsel and parties do not choose mediators-arbitrators unless that person has experience in the area under dispute and they are prepared to repose confidence in both the mediator-arbitrator and the process.  

Although statistics are not available, anecdotally I am aware that the vast majority of mediations in the med-arb process actually settle and there is no need for arbitration.

If there is to be arbitration after a mediation was unsuccessful, it is always separated in time from the mediation process. Mediators do not refer to the matters heard during the mediation and they, like judges, are able to disabuse themselves of evidence that is inadmissible.

Judges are frequently called upon to listen to a lengthy voir dire in which they ultimately rule the evidence that they heard during it is completely inadmissible. No one complains that that somehow influences the judge in the outcome of the case.

So it is with mediators. They may well hear evidence in mediation that might be inadmissible in a family law trial, although quite frankly, it is likely that most things said at mediation could ultimately be proved in a formal arbitration.

Mediation-arbitration works because essentially the parties want it to work. The reason the parties choose mediation-arbitration is they want a process that will bring certainty, finality, and an expeditious resolution to their family law dispute.

They are uncomfortable with the court process because it takes too long, costs too much, is paper intensive, results in a significant number of appearances, and in difficult cases, often leads to a series of appeals.

The court process, meanwhile, is not confidential and parties often do not wish to have the intimate details of their life published in a law report or in a legal newspaper.

Of course, there is an important place for the court system, but the sad fact is that many use it because they want to engage the other spouse in a public and expensive forum.

Family law is unlike corporate and commercial law in the sense that both parties may not wish a resolution at the same time. Quite frequently in family law cases, one party would rather litigate than settle regardless of the offers.

Mediation gives people an opportunity to explore their differences in a controlled setting with someone who has family law experience.

That person can not only help the parties explore their differences but also provide some neutral evaluation when it is called for in order to keep the parties’ expectations on a reasonable plane. Coupled with arbitration, it is a powerful tool that, as experience has shown us, promotes settlement.

Arbitrators, meanwhile, are required to follow the rules of natural justice, the rules of evidence, and the case law from Ontario and Canada.

I agree with Joseph that we need a unified family court, but even that will have some of the same problems that are now systemic in the family law system.

The federal courts of the United States have always had one judge preside over all aspects of the case including the trial. Although that is foreign to our system, it seems to work reasonably well there and is not essentially different from the private process of mediation-arbitration.

I also agree with Joseph that there will be times when a specific arbitrator should not be chosen when that person is engaged with one of the counsel in other litigation.

However, there are many mediators-arbitrators to choose from and since the process is entirely consensual, until the parties sign a mediation-arbitration agreement, there is no reason that this kind of conflict should arise.

I reject Joseph’s suggestion that arbitrators who resolve cases following mediation do not do so on a principled basis. The fact is that, at the end of the day, more and more counsel and parties are turning to this process because of the benefits outlined above.

There are always some drawbacks to every dispute-resolution system, but many of the ones that concern Joseph can be completely minimized by a careful choice of mediator-arbitrator and one particularly suited to the particular case.

On a final note, there is nothing to prevent counsel from agreeing that one person will mediate and a different person will arbitrate.

While that is indeed an available process, it is interesting to speculate as to why so few counsel choose that alternative as opposed to the hybrid option of mediation-arbitration.

I suspect the answer lies in the fact that parties and counsel really want one-stop shopping rather than the emotional strain and financial costs of a do over.

Philip Epstein,
Epstein Cole LLP
Toronto
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