Law Times

March 2, 2015

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Arbitrator's removal reignites debate over med-arb BY YAMRI TADDESE Law Times mediator-arbitrator re- moved from a case for apprehension of bias says he was simply giv- ing the parties what people sign up for when they choose that particu- lar method of alternative dispute resolution. People who enter into medi- ation-arbitration want clarity on what the outcome of arbitration could be from the person who pre- sided over the mediation phase of the same dispute, says mediator- arbitrator Gary Direnfeld. "That is the reason to enter medi- ation-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, Supe- rior Court Justice Douglas Gray removed Direnfeld from the mat- ter 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 any- more by one of two ways: an arbitra- tion hearing and I change the resi- dential plan, or you change. I have educated, coached, begged, cajoled you. I'm not gonna do any of that anymore," Direnfeld tells the moth- er, 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 daugh- ter to disrespect her father." Another excerpt quotes Diren- feld saying: "From my perspective, there's more than ample evidence and concern to demonstrate that knowingly, unknowingly, inad- vertently, 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 media- tor/arbitrator will be open to per- suasion, 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 va- cation 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 It ' s back 2015 CANADIAN LAWYER'S LEGAL FEES SURVEY Complete the survey online at surveymonkey.com/s/legalfees2015 and let us know what you are charging for various transactions and services in multiple practice areas. Survey closes March 30 Untitled-5 1 2015-02-23 10:45 AM Prof touts ABS plus Suggestion among range of submissions to LSUC BY YAMRI TADDESE Law Times dding fuel to an al- ready-raging debate on alternative busi- ness structures, the Law Society of Upper Canada has released a report laying out the wide-ranging perspectives it has received from the profession so far on whether to let non-law- yers own law firms. Some, like Cognition LLP, said alternative business structures would allow them to lock in capi- tal more easily, thereby insulating firms from cash-f low troubles. Others, like the Ontario Trial Lawyers Associa- tion, said the role of alternative business structures in fostering innovation is "overstated." Still others conjured up a new concept, dubbed "ABS plus," that the law society should be considering. According to University of Ottawa Faculty of Law Prof. David Wiseman, new models will only have a "trickle-down" benefit for poor Ontarians who lack access to justice. That's why he suggested the law soci- ety should look into an enhanced version of alterna- tive business structures. "The idea is basically trying to work out if there's a way to build any mechanisms into the regulatory framework for introducing ABS that might sort of leverage it to do more for low-income people," Wiseman tells Law Times. "Essentially, I think ABS might have some chance of improving the accessibility of legal services. But mostly that will be for people who can afford to pay — so probably more for middle-income people than low-income people — and so my sort of suggestion is that now is the time to think about whether there's any way more might be done for allowing ABS to help a broader range of people." Determining the exact ways in which new models could provide a greater benefit to the poorest Ontar- ians requires more study, says Wise- man, but he can think of a couple of options. Should the law society allow alternative business structures and start regulating law firms, for example, it could impose a differential licensing-fee structure that pro- vides an incentive to those who are doing more for low-income people, according to Wiseman. Another option is to set up "some sort of fund" firms can apply to in order to get seed capital for ideas that might have particular benefit for the poor, says Wiseman. The time to consider those options is now, he adds. If the law society approves alternative busi- ness structures without considering those issues, it SURVEILLANCE DISCLOSURE Court highlights parties' obligations P4 PUNITIVE DAMAGES Bell Mobility deserves added censure in 911 case P7 FOCUS ON Labour & Employment Law P8 Improving accessibility of legal ser- vices to the poor should be a key consideration, says David Wiseman. See Arbitrator, page 2 See Submissions, page 2 PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $5.00 • Vol. 26, No. 7 March 2, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES A A A towering presence Our annual list of the 20 largest law firms is out this week, and Fasken Martineau DuMoulin LLP, with its Toronto offices at 333 Bay St., has come in at No. 1 with 794 lawyers in Canada and around the world. See page 5 for the full list. Photo: Robin Kuniski

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