Dec 10, 2019
Once used primarily in family law cases, Med-Arb – a dispute resolution process that starts with mediation and then, if no settlement is reached, goes on to binding arbitration with the mediator taking on the role of arbitrator – is being turned to more and more often in business disputes. In her article in the 2019 Lexpert/ROB Special Edition on Leading Litigation Lawyers, senior editor Elizabeth Raymer takes a close look at the increase in popularity of Med-Arb and draws on the insight of a number of practitioners to determine the benefits – and drawbacks – of using it to resolve a dispute. One of the experts Raymer reaches out to for her take on Med-Arb is Lauren Tomasich, litigation partner at Osler and the key contact and lead for the firm’s Commercial Arbitration Group.
“Some practitioners are a bit hesitant to use it,” Lauren explains, because offers made during the mediation part of the process are seen by the final decision-maker, given that the mediator becomes the arbitrator. However, she believes that overall Med-Arb is a good alternative as all the parties “have the objective to resolve clients’ disputes in an efficient and effective manner.”
Lauren goes on to comment that Med-Arb can be particularly advantageous when there are only a few key issues to be determined. Plus, a resolution can be reached much more quickly.
“Working with one individual who’s both the mediator and the arbitrator, and knows all the issues” can be useful, she continues. “The mediator is up to speed on the facts, and for an arbitration hearing [where] evidence needs to be adduced, you can plan everything in advance. You have a decision-maker who’s up to speed, and you have agreement as to how to move things forward regarding evidence and consideration on the merits. You can structure the process.”
Last July, the ADR Institute of Canada announced that it is developing a designation for Canadian Med-Arb practitioners and has drafted a framework for Med-Arb processes. Lauren calls this an “interesting initiative, and quite novel,” and suggests that it might result in a further increase in the use of Med-Arb.
“I could see [Med-Arb] then being proposed up front: an effective result for the client, [done] as cost-effectively as possible. The more options you have, the more strategic you can be in the dispute resolution process.”
To learn more about the ongoing evolution of Med-Arb, read Elizabeth Raymer’s full article, “The Med-Arb option,” in Lexpert/ROB Special Edition on Leading Litigation Lawyers from December 2019.