Law Times

Law Times • august 24, 2015 Page 9 www.lawtimesnews.com Ari Kaplan taking expertise to mediation realm By JuliuS Melnitzer For Law Times ri Kaplan of Koskie Minsky LLP is one of Canada's leading pen- sion lawyers. Now, after 17 years as a pensions prac- titioner, he's also taking his ex- pertise to the field of mediation. "What I intend to expose the mediation and litigation com- munity to is my original exper- tise in pension law," he says. "Over the course of my ca- reer, I've found that pension issues engage a broad range of litigation and dispute resolution formats because they affect a wide swath in the community." Toronto-based Kaplan is a qualified mediator who has devoted more than half of his training to family law, including screening for power imbalances and domestic violence. He has also run into family issues regu- larly in the course of his pen- sions practice. The complexity of pension issues, he believes, raises access- to-justice concerns that expert mediation could address. "At the most human level, pension issues arise when spous- es separate because they must be taken into account when con- sidering support or net family income," he says. "But the issues can be difficult, so family law- yers and judges are anxious that they be resolved." There's considerable value, Ka- plan maintains, in having experi- ence in what's frequently a signifi- cant part of a family law dispute. "Substantive and practical ex- perience in pension law can allow spouses to find options they may not have known about in order to resolve a legal impasse," he says. "Knowing how large public sec- tor plans operate or how sponsors will administer separation agree- ments can be helpful in crafting appropriate solutions." While Kaplan is focusing on acting as a traditional mediator with a special expertise, he also sees opportunities as a co-medi- ator. "It's not uncommon for family mediators to call in both financial professionals for valuing assets and parenting professionals to deal with custody and access is- sues despite the fact that these co- mediators may not have substan- tive experience in family law," he says. "There's no reason why they shouldn't call in a pensions pro- fessional where appropriate." Similarly, pension expertise has a place in labour and employ- ment disputes. "It could be very useful to have . . . a mediator or co-mediator who knows the mechanics of pension law," says Kaplan. Corporate restructuring and similar matters, of course, also beckon. "The pension piece can be an important part of any corporate restructuring or transaction, including mergers and acquisi- tions, so it's not a bad idea to have an expert around to deal with these issues as a mediator or co-mediator," says Kaplan. Indeed, Kaplan's interest in mediation stems from a case in which a large company and three unions negotiating a pen- sion agreement retained him as an expert. "I helped to identify the is- sues and set up negotiating pa- rameters as well as giving legal opinions," he says. "In point of fact, I became a mediator." The experience also crystal- lized the similarities involved in assessing any dispute that deals with a collective agreement. "I've spent much of my ca- reer representing large groups of employees and pensioners because pension rights are by nature group rights," he says. "And whenever there is a com- promise of pension rights that affects a large group, as in class action settlements or insolvency proceedings, adjudicators need assurance that the deal arrived at has been fair to all stakehold- ers and classes of pensioners." Providing that assurance, ac- cording to Kaplan, is a feature of mediation practice. "Writing a report, for ex- ample, can be very helpful in assisting a judge or adjudicator reviewing a settlement," he says. "It can also be helpful even when there is no litigation and a board of directors or governors want support for a decision they've made or direction they've taken." Allan Stitt, president and chief executive officer of ADR Chambers, says Kaplan has some good ideas but he suggests they could be a tough sell. "It's a challenge to get lawyers who aren't used to mediation to buy into the discussion," he says. "And when they do get their head around mediation, it may be hard to convince them of the value of subject-matter exper- tise." For his part, Stitt believes subject-matter expertise can be quite valuable but he notes that a large part of the mediation com- munity thinks otherwise. "Still, Kaplan's approach could be very popular if he can get lawyers and mediators to understand the value of getting involved in creative solutions, where subject-matter expertise can really make a difference," he says. "If he can do that, his phone will be ringing off the hook." Stitt points out that co-medi- ation is quite common, especial- ly for less experienced mediators who learn their craft by mediat- ing with more experienced indi- viduals. "The subject-expert model, however, is less common be- cause very few parties are inter- ested in paying two mediators," he says. Nevertheless, Stitt believes the pension bar will be most welcoming. "That's the right place to start," he says. LT FOCUS A TF: 1.888.223.0448 T: 416.868.3100 Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom. (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP\RXDUHSXWWLQJ \RXUUHSXWDWLRQRQWKHOLQH,WLVDOODERXWWUXVWZHOOSODFHG TRUST CRAIG BROWN | WENDY MOORE MANDEL | STEPHEN BIRMAN Untitled-2 1 2015-08-20 8:33 AM Mediation over pension issues can cover a range of legal areas, says Ari Kaplan. encourages readers to send us letters, but will edit them for space, taste, and libel consideration. Please provide your name, address and contact number and send all letters to: Law Times, 2075 Kennedy Rd., Toronto, Ont. M1T 3V4 E-mail: glenn.kauth@thomsonreuters.com CorreCtion An Aug. 10 article, "Employ- ment law giant enters Ca- nadian market," contained an error. Littler Mendelson PC is a San-Francisco-based law firm rather than, as the article stated, from Chicago.

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