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Arbitrator’s removal reignites debate over med-arb

|Written By Yamri Taddese

A mediator-arbitrator removed from a case for apprehension of bias says he was simply giving the parties what people sign up for when they choose that particular method of alternative dispute resolution.

People who enter into mediation-arbitration want clarity on what the outcome of arbitration could be from the person who presided over the mediation phase of the same dispute, says mediator-arbitrator Gary Direnfeld.

“That is the reason to enter mediation-arbitration. And at the end of the day, if you don’t want that, don’t enter into mediation-arbitration whatsoever, quite frankly,” he says.

In McClintock v. Karam, Superior Court Justice Douglas Gray removed Direnfeld from the matter for creating an impression he “had already made up his mind on issues that were very contentious” prior to an arbitration hearing.

Gray cited some excerpts from a meeting Direnfeld held with the sparring parents of a 10-year-old girl. In those comments, Direnfeld essentially told the mother he’d arbitrate in favour of the father, who had requested custody of the child, since she had allegedly tried to alienate the girl from him.

“You know, behaviour speaks louder. It’s not gonna happen anymore by one of two ways: an arbitration hearing and I change the residential plan, or you change. I have educated, coached, begged, cajoled you. I’m not gonna do any of that anymore,” Direnfeld tells the mother, according to the transcripts.

“Now I’m gonna arbitrate and you’ll either do it or you won’t. Is that understandable? And I don’t say that facetiously or aggressively or — I do want you to appreciate that. You’re actively teaching your daughter to disrespect her father.”

Another excerpt quotes Direnfeld saying: “From my perspective, there’s more than ample evidence and concern to demonstrate that knowingly, unknowingly, inadvertently, intentionally, you’re undermining the relationship of your daughter with her father. That’s a real concern.”

While mediator-arbitrators don’t necessarily have to “cleanse the mind” of the perceptions they formed at the mediation stage of the proceedings, Gray wrote that “at 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.”

After making his remarks, Direnfeld gave the parties what Gray considered a short notice for single-day arbitration. The fact he didn’t agree to delay the hearing date until the mother’s lawyer had returned from a prearranged vacation only made the appearance of bias worse, according to Gray.

“The notice was quite short. When counsel for the applicant said he would be out of the country, the arbitrator refused to change the date, even though counsel was only suggesting a delay of two months,” the judge wrote, adding that since the girl had been living with her mother for nine years, it was “inconceivable that a delay of two months was unreasonable or could not have been accommodated.”

The decision follows debate in the legal profession about the appropriateness of mediation-arbitration. Critics say it’s impossible to set aside perceptions formed during the mediation phase and objectively hear the facts at the arbitration stage.

Glaholt LLP counsel Harvey Kirsh is a skeptic of the mediation-arbitration process.

“My own personal view is that you can’t be a mediator and then subsequently be an arbitrator in the same dispute involving the same parties,” he says. “Part of the reason for that is because when you’re acting as a mediator, most mediators’ objective is to solicit trust from both parties and to have both parties make disclosures to the mediator that may help him or her bring the parties close together.”

The disclosures can sometimes include the weaknesses of the parties’ cases, he notes. “Sometimes, that involves disclosing to the mediator weaknesses of your case or confidential things that would never come up in court or an arbitration hearing,” he says, adding the same mediator would then put on “a different hat as an arbitrator” after being privy to such information.

Kirsh believes the judge in McClintock was correct to remove Direnfeld. “It looks like the mediator was not impartial; he had prejudged the case and he had sided with one of the parties.”

For Direnfeld, letting the parties know how the matter could end at arbitration judging by where things are at a given moment is part of the appeal of this form of alternative dispute resolution.

“We are choosing an alternate dispute resolution process because we actually value the opinion of the person providing the settlement conference or the mediation phase. We value that that person will preside over the arbitration phase and want them to be privy to all this information and knowledge.”

In his specific case, his contracts allow him to contemplate information obtained during the mediation phase later at arbitration if the first stage of resolution fails, he notes. He also suggests it’s nearly impossible to say, “What happens in mediation stays in mediation.”

“The fact is we all remain human and we’re going to be influenced, truly, by the entire process.”

According to family lawyer Gary Joseph, while one party may appreciate the arbitrator’s opinion following mediation, the losing side is likely to feel otherwise. Joseph, a fierce critic of mediation-arbitration, says the effort to reduce costs and expedite matters is having an impact on proper due process.

“There’s a reason why settlement conference judges cannot hear trials and the reason is we are all human and we can’t help but absorb and be somewhat influenced by data and material that we receive within another process,” he says.

For more, see "Med-arb splits ADR community."

  • Michael Smith
    It is unfortunate that the AGO and other policymakers refuse to do anything about the Wild West of mediation-arbitration. Because the courts are so packed, it's viewed as a good alternative. But when there is no oversight to speak of, some mediators-arbitrators can (and do) act in ways that completely ignore the policies that they are supposed to adhere to.

    For example, while I was being threatened, verbally abused and harassed during the med-arb process, the mediator-arbitrator did nothing about it. When I complained, he ignored my pleas for help. He thought by simply putting us in separate rooms would solve the problem. Screenings for abuse were never done. Not during mediation and not during arbitration. And I was essentially stuck in the process.

    Only after he resigned did I learn of the conflict of interest that had occurred. And yet, neither the OAFM nor the ADR said anything about this. They just wanted it to all go away.
  • Michael Smith
    Sorry, Janet. ADR may have a code of conduct and disciplinary process in place, but that doesn't mean that they will apply it. They simply didn't in my case. In fact, ADR only responded to some of the minor issues I had. Because those were easy to answer. When it came to the conflict of interest, ADR did not even comment. They refused to go on the record. When I asked why they wouldn't even comment, they said, "that's the decision of the committee."

    No transparency. No accountability. None. ADR was protecting the mediator-arbitrator from the embarrassment of all of the policies and guidelines that he ignored, as well as the clear conflict of interest that he breached. When I tell others in the legal system about what transpired, they are disappointed but not shocked. Groups like OAFM and ADR are weak and useless. Just ask around. They will not throw one of their own under the bus. That's what happens when you have self regulation.
  • Janet McKay
    ADR Institute of Ontario (ADRIO) holds its members accountable. ADRIO has both a code of conduct and a code of Ethics; standards that include the neutrality of the service as well as a very well established complaint and disciplinary process to ensure the highest standards of professional practice.
    Janet McKay, Interim Executive Director, ADRIO
  • Michael Smith
    In 2012, Gary Joseph and Phil Epstein debated the merits of the med-arb process in the Law Times. Based on my experience, Mr. Joseph's characterization is dead-on while Mr. Epstein's is flawed - and embarrassingly so. And while I don't have nearly the space to write about all that ails the med-arb process, there can be no doubt that the dysfunctional process managed by my biased mediator-arbitrator heightened the conflict between my ex and me. Even as I was being threatened and harassed by my ex with as many as ten e-mails per day, the biased mediator-arbitrator suggested I be "more communicative". Only later did I find out the connections that existed between my ex and the mediator-arbitrator. Unfortunately, no one is holding the mediator-arbitrator accountable. Not the OAFM or ADR, nor the Law Society. They have turned the other cheek because of who he is in the legal community. And because there is no accountability, mediator-arbitrators have carte blanche to do anything.
  • Gary Joseph
    This is a healthy and necessary debate that the family law bar must embrace.
  • Michael Smith
    I applaud Gary Joseph's continued criticism of the med-arb process. I, too was impacted by a biased mediator-arbitrator - a person who everyone in the legal community knows but is too afraid to call out. In my case, the "reputable" mediator-arbitrator ignored most protocol, guidelines and policies. And when my ex's harassment, threats and verbal abuse continued unabated, let's just say the mediator-arbitrator did nothing about it. Screenings for abuse were an afterthought. Power imbalances ignored.

    Only well after the process ended did I learn of this individual's conflict of interest which was well hidden by the mediator and opposing lawyer - a close colleague of his. Of course, those investigating the mediator-arbitrator's negligence and unethical behavior looked the other way. In fact, neither the OAFM nor ADR did anything about it. Neither wanted to set precedent through the results of their investigation of the mediator-arbitrator, as if he was above the law.
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