Law Times

PAGE 10 FOCUS march 14, 2011 • Law Times Lawyers slow to use new mediation act But legislation key to making processes more effective, lawyer says BY JULIUS MELNITZER For Law Times O ntario's Commer- cial Mediation Act, enacted on Oct. 25, 2010, remains under the radar of most stakeholders in the dis- pute-resolution process. "I haven't seen any practi- cal impact on our legal system and I'm not getting calls from corporate lawyers about draft- ing dispute-resolution clauses to take advantage of the legisla- tion," says Douglas Harrison of Stikeman Elliott LLP's Toronto offi ce. Still, Harrison is confi dent the act will make its mark, primarily because mediation settlement agreements will be- come enforceable in the same way judgments are as long as the settling parties register their agreement with the court. "Th is is a big deal because people who go through me- diation will not have to sue in contract in order to enforce agreements they have reached," Harrison says. "Th at will re- ally serve to reduce the time involved in making the media- tion process eff ective, particu- larly in the case of non-compli- ant parties." Th e legislation's statutory provisions regarding mediators will also attract disputants. Th e act requires mediators to disclose confl icts of interests and any circumstances that might give rise to a reason- able apprehension of bias. Th e duty to disclose con- tinues until the mediation ends. Under the law, a confl ict occurs if a mediator has a fi nancial or personal inter- est in the outcome or has or has had a relationship with a party or someone related to a party. Mediators can't subse- quently act as arbitrators in the same or related disputes. Mediators also have a posi- tive duty to treat parties fair- ly, an obligation the litigants can't relieve them of. Media- tors may disclose informa- tion received from one party to another unless the person giving it makes an express re- quest that they not do so. "For people who aren't fa- miliar with mediation, the ex- istence of these statutory duties will give them a measure of as- surance that mediators are gov- erned by principles other than subjective fairness," Harrison says. "And that serves to legiti- mize the process, especially for the vast majority who are not familiar with mediation." Th e new Ontario act is based Ontario's Rules of Civil Proce- dure. Where the mediation is by contract or consent, parties can choose to have some but not all of the act's provisions apply to it. Th e act doesn't apply to proceedings related to the formation of collective agree- ments, to forms of media- tion (such as computerized dispute resolution) in which there's no mediator or to ef- forts by judges or arbitrators to achieve a settlement in the course of legal proceedings. If a party fails to comply The act will help speed up enforce- ment of agreements, says Douglas Harrison. on the United Nations Com- mission on International Trade Law's Model Law on Interna- tional Commercial Conciliation. It aff ects mediations commenced on or after Oct. 25, 2010, in re- lation to commercial disputes only, whether contractual or not, unless the parties agree to have it apply to their proceed- ings or unless they fall under the mandatory mediation rule of with a mediated settlement agreement, any party wish- ing to enforce it can apply to a Superior Court judge for judgment on the same terms as the agreement or to the registrar for an order au- thorizing registration of the agreement. Th e registrar must grant the application unless a party didn't sign or consent to the agreement or unless it was the result of fraud or doesn't prop- erly refl ect the terms to which the parties agreed. Upon regis- tration, the agreement has the same eff ect as a judgment and is therefore likely amenable to re- ciprocal enforcement legislation domestically or internationally. Th e act also protects the confi dentiality of information that's not otherwise public or that the parties consider con- fi dential. Neither the mediator nor the parties may disclose confi dential information un- less the litigants agree; the law so requires; or the information is necessary to enforce a settle- ment, allow a mediator to re- spond to a claim of misconduct or protect health and safety. Absent the agreement of the parties and the mediator, such information is not discoverable or admissible in any judicial, arbitration or administrative process unless the law so re- quires, the mediator needs it to respond to an allegation of misconduct or it's necessary for the settlement's enforcement. Finally, parties can agree to abstain from arbitration or judi- cial proceedings before a media- tion process concludes but may obtain relief from that agree- ment on application to a judge or arbitrator if such proceedings are necessary to preserve rights or are in the interests of justice. Commencing an arbitration or judicial proceeding, however, is not in itself a termination of the agreement to mediate or the mediation. Agreeing to media- tion, however, triggers applica- ble limitation periods under the Limitations Act. The best fit for success. Membership in the Canadian Bar Association (CBA) provides more than 37,500 lawyers access to the piece of the puzzle which enables them to excel. The CBA enhances your professional influence by providing the platform for you to participate in legislative and policy solutions in your field. The CBA leadership role helps you keep your edge by accel- erating your professional development through innovative tools and access to accredited professional development programs and industry leaders. The CBA protects your interests and upholds the core values of the legal profession every day in ways that individual lawyers and law firms cannot accomplish alone. We do this by leading the debate on fundamen- tal issues such as solicitor-client privilege, the Rule of Law, access to justice, and an independent judiciary. Join today by visiting www.cba.org. INFLUENCE. LEADERSHIP. PROTECTION. Untitled-2 1 www.lawtimesnews.com 3/4/11 10:07:32 AM

• Cover
• Settlement Ruling
• Shared Assets
• Focus On Litigation