Lauren Tomasich, Sarah Firestone
Jan 22, 2020
An article in the Law Times looks at Canada’s forthcoming “med-arb” rules, which are among the first of their kind and are garnering information requests from around the world for their creators. According to author Anita Balakrishnan, the guidelines, which were approved in December, are in the final polishing stages by the ADR Institute of Canada and “provide a model for a mash-up alternative dispute resolution process, where the parties first try to work it out using mediation, and then move directly to an arbitration process if they are unable to come to a resolution within an acceptable timeline.”
The article notes advantages of the “med-arb mash-up” but states it has presented challenges to some practitioners, “particularly as they decide whether to move from the role of mediator to arbitrator or bring in a new neutral party to arbitrate” and that, while having a mediator move forward as the arbitrator can save parties time and costs, there is also a downside to having one neutral party handle both parts of the med-arb process. To gain insight into the process, Law Times turned to a publication written by Lauren Tomasich, a litigation partner and key contact for the firm’s Domestic and International Arbitration Group, Eric Morgan, and Osler articling student Sarah Firestone that considers how arbitration legislation applies to having the same person act as both mediator and arbitrator and explores the pros and cons.
“There is the risk of contamination of the arbitrator’s mind because of information obtained in the without prejudice mediation,” they said regarding having the same person act as a mediator and arbitrator in the same dispute.
“Positions taken and evidence disclosed for the purpose of mediation are done without prejudice. Using the same neutral as arbitrator who was the mediator may mean that their understanding of the case is tainted by what they learned during the without prejudice proceedings,” they added. “The changing role of the neutral may lead parties to feel inhibited in the mediation process and disclosing and discussing their interests because of a concern that this information may later be used against them.”
For more information, read Anita Balakrishnan’s full article, “Canada is among the first countries to release guidelines for combining mediation and arbitration” in the Law Times.