Law Times

PAGE 12 FOCUS December 6, 2010 • Law Times Ontario bolsters mediation New act ensures enforcement of commercial settlements BY ROBERT TODD Law Times O ntario's newly adopt- ed Commercial Me- diation Act is being viewed as a further legitimiza- tion of the use of alternative dispute resolution methods to help steer more cases away from busy courthouses. Th e province is the second in Canada to enact this type of legislation after Nova Sco- tia did so in 2005. Both acts came out of the Model Law on International Commercial Conciliation, which was cre- ated in 2002 and has been em- braced in the United States by jurisdictions such as Illinois, New Jersey, and Ohio. Th e legislation was passed here in October through the Liberal government's omnibus Open for Business Act. Th e new Ontario act doesn't apply to the existing mandato- ry mediation provisions under the Rules of Civil Procedure. "Th ese new provisions ap- ply where parties of a dispute, before anybody sues anybody else, try to mediate the dis- pute," says Douglas Harrison, a litigation partner at Stikeman Elliott LLP in Toronto. Th e law applies only to commercial disputes and isn't enforceable in relation to family law mat- ters, accident benefi ts issues with insurers, and various other types of disputes in which par- ties often use mediation. Meanwhile, he says the most important aspect of the legislation is the fact that it allows parties that have medi- ated a commercial dispute to take their settlement to the court and have it registered, which gives it the same force as a judgment. "You can then take steps to enforce the settlement much more easily than before," says Harrison. "Previously, you would have to eff ectively start a lawsuit to sue on a breach of contract for failure to abide by the settle- ment. Now, it's a much more streamlined process. You don't have to start a lawsuit; you just register the settlement and, in a number of easy steps, you've eff ectively gotten yourself a judgment." Harrison notes that as law- suits can take years to get through the court system, the act also cuts down on the time frame for parties to obtain the remedy they're looking for. Another key aspect of the new law involves obligations placed on mediators. Th ey must now consider whether they "may have a current or potential confl ict of interest or if any circumstances exist that may give rise to a reasonable apprehension of bias." If that's the case, they must disclose it to all parties involved in the mediation. "Th at is a positive obligation that is maintained throughout the course of the mediation," Harrison emphasizes. "So if they learn of some- thing later, after they've been appointed, that may give rise to a confl ict of interest . . . they have a positive duty now to disclose that." However, there was no ex- isting problem of mediators failing to disqualify themselves from hearing matters in which they may be confl icted prior to the new legislation, Harrison points out. "Th ere's a lot of great mediators, and eff ective- ly what I think the legislation does is [it] codifi es the practice that all good mediators have in place. ADR/MEDIATION TITLES i COMMERCIAL ARBITRATION IN CANADA: A GUIDE TO DOMESTIC AND INTERNATIONAL ARBITRATIONS J. Kenneth McEwan, Q.C. and Ludmila Barbara Herbst This resource addresses both the statutory and common law context within which international and domestic arbitrations are conducted. It considers issues arising from the interrelationship between arbitral and judicial proceedings, including the enforceability, severability and scope of arbitration clauses. Looseleaf • Special Price $172 (Regular Price $215) • Subscription updates invoiced as issued (1/yr) • P/C 0120030000 • ISBN 0-88804-395-3 NEGOTIATION: THE ART OF MUTUAL GAINS BARGAINING, SECOND EDITION David J. Corry and Courtenay M. Mercier No other book focuses on the negotiation aspect of collective bargaining from a co-operative mutual-gains perspective. Fully explained with practical and current examples, this resource analyzes and prescribes strategies, tactics and checklists for the benefit of both parties involved. Perfectbound • 210 pp. • April 2010 • $68 • P/C 0712010002 ISBN 978-0-088804-494-5 WORKPLACES THAT WORK: A GUIDE TO CONFLICT MANAGEMENT IN UNION AND NON-UNION WORK ENVIRONMENTS Blaine Donais This is the first-ever resource to provide a practical guide to dispute resolution in both the union and non-union workplace. It offers quantitative solutions to managing workplace conflict through tools such as the Testing Instrument for Fairness Systems and Fairness Cost Analysis Tool that allow you to analyze your workplace and create a more effective workplace fairness system. Perfectbound with CD-ROM • 368 pp. • 2006 • $89 • P/C 0143010000 ISBN 0-88804-445-3 'You can then take steps to enforce the settlement much more easily than before,' says Douglas Harrison. "I think what it does is give a greater assurance to parties who are coming into this kind of a process, who has never had to deal with this sort of a pro- cess before, a certain assurance that there's not any confl ict of interest with the mediator they're going to be in front of." To that end, the legislation gives further legitimacy to the expanded use of mediation and thereby allows for the diversion of more cases from the courts, he adds. "It solidifi es the notion that there are well-recognized alter- natives to having to go to court in order to try and settle dis- putes. Adoption of this kind of legislation by the govern- ment of Ontario furthers to legitimize an already accepted process but it helps to solidify the concept of using alternative dispute resolution." Corporate lawyers looking to build a dispute resolution mechanism making way for mediation into a commercial agreement should take note of the new legislation, according to Harrison. He encourages them to include provisions in the document asserting that any such mediation will take place in Ontario, which will let them assure clients that they'll gain the benefi t of the provi- sions of the act. Th at will be particularly important for those looking to ensure enforcement of any settlement agreements. Meanwhile, it remains to be seen how well the legislation will be used to address the vari- ous issues that challenge com- mercial mediations. David Rosenbaum, a litiga- tion partner at Fasken Mar- tineau DuMoulin LLP in To- ronto, suggests that will take shape through practice and continued use of the new pro- visions. "Th ese are the kinds of canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT1206 CA130 www.lawtimesnews.com things that, in the abstract, it's very diffi cult to answer," he says. "It's only in the heat of the moment that you realize, 'Oh jeez, where's the provision that deals with that?'" LT a V i s i f t r o u b r m w e e b e s i D t e n c e o r

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• Wireless Evidence
• Aggressive Bureaucrats
• Focus On ADR / Mediation