Arbitrator’s removal reignites debate over med-arb

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."

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