Law Times

PAGE 12 FOCUS APRIL 21, 2008 / LAW TIMES and is now in a litigator's toolbox like discovery — Canada is seeing the emergence of several mediation Lawyers taking to mediation and running with it W BY HELEN BURNETT Law Times hile mediation has be- come part of the civil litigation practice — trends, some of which are already being seen in other jurisdictions. Lawyers are taking to media- tion, and "running with it," Mi- chael Silver, a Toronto mediator and arbitrator, told the Ontario Bar Association Institute session on civil litigation. There are several future trends that litigators could see in the field, including premediation conferenc- es, which are almost the rule in the United States and are starting to become more common here, says Kathleen Kelly, executive director of ADR Chambers. She says in the U.S. it's common practice in the large centres to have the individual conference with, for example, "the mediator speaking with one counsel in the absence of the other counsel on the case, be- fore they have the mediation." This is helpful, especially for big-value cases and expensive me- diators and lawyers, because it makes the process as efficient and effective as possible, says Kelly. "There's nothing more chal- lenging for a mediator than to go into a mediation when counsel are not prepared, when they have not prepared their clients, and when they have set an artificial timeline for the conduct of the mediation." Another trend is mediator in- Kuretzky Vassos Henderson LLP is widely recognized as one of Canada's leading employment and labour law boutiques. We practice at the cutting edge assist- ing a wide spectrum of clients ranging from major corporate employers through to individual plaintiffs. Our practice includes employment contracts, wrong- ful dismissal, collective bargaining, labour board applications, arbitrations, adjudications, employ- ment standards, health & safety, human rights and ADR. To discuss what we can do for you or your client, call Kuretzky Vassos Henderson LLP at Kuretzky Vassos Henderson LLP 151 Yonge Street, Toronto, ON M5C 2W7 (416) 865-0504. Suite 1404, Yonge Richmand Centre, McEwan J.•Commercial Arbitration in Canada-A Guide to Domestic and International Arbitrations 4/16/08 10:38 AM Page 1 Tel: (416) 865-0504 Fax: (416) 865-9567 www.kuretzkyvassos.com where mediators become arbitra- tors, is also developing. Normally what happens under this model, says Kelly, is a mediation will commence, and then the parties will ask the mediator to arbitrate. The process starts, the parties en- ter into an arbitration agreement, and the parties consent to the mediator's carrying on as an arbi- trator. This process also includes the labour-relations model, where parties speak between themselves to try to sort it out, and if that doesn't work, they may ask the The use of hybrid processes, terviews by counsel, which are hap- pening more often. "Parties want to get a sense of your style and some- times they want to get a sense of what your substantive background and knowledge might be in certain areas of law — and in some cases that's perfectly valid," she says. For parties who have substan- Mediator interviews are 'per- fectly valid' in some cases to help the parties get a 'sense of your style,' background, and knowledge in certain areas of law, says Kathleen Kelly. tive issues and counsel who can't agree on what the law is, Kelly says that, instead of hiring a mediator who is a substantive law expert, it is better to retain one who is good at managing and conducting the me- diation process and to have counsel spend the time explaining to them what it's all about. arbitrator to mediate, under the Arbitration Act, she says. As a future trend, Kelly adds that when someone is mediating and a sticky issue of law comes up and you want a legal opinion on it, rather than going to open court, the hybrid process involves framing the issue as an arbitration question and asking a retired judge at ADR Chambers, for example, to decide it as an arbitration question — as either an advisory award or a binding award. "There's been quite a bit of en- thusiasm for that," she says. There has also been a rise in unrepresented and self-represent- ed parties, says Kelly. "The role of counsel changes when you've got an unrepresented litigant there as well," she adds. From the media- tor's perspective, they can choose to have a co-mediator, or conduct the process in a joint session. Mediators can also give an un- represented litigant a cooling-off period after the settlement, where the litigant would have an oppor- tunity to seek legal counsel. Silver notes T proceedings and rights of appeal. Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations also considers both procedural and substantive issues arising in the conduct of arbitral proceedings including available rules of procedure and the enforcement of awards. Looking for perspective? This invaluable looseleaf service summarizes the historical background to arbitration as a form of dispute resolution, as well as the evolution of public policy promoting arbitral autonomy. Both statute and common law of all Canadian jurisdictions are covered. Benefit from: • discussion regarding why one might go to arbitration • discussion of stays of litigation, appeals and enforcement awards • case summaries • advice on drafting an agreement to go to arbitration, procedure and termination, jurisdiction and authority Order your copy today! Looseleaf & binder • $197 • Supplements invoiced separately (1-2/yr) P/C 0120030000 • ISBN 0-88804-395-3 For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca Canada Law Book is A Division of The Cartwright Group Ltd. • Free Shipping on pre-paid orders. Prices subject to change without notice, and to applicable taxes. www.lawtimesnews.com LT0421 his book addresses both the statutory and common law context within which international and domestic arbitrations are conducted in Canada. In addition, it considers issues arising from the interrelationship of arbitral proceedings with the courts, including the enforceability, severability, and scope of arbitration clauses, as well as the availability of stays of too far beforehand could be set- ting themselves up for a difficult time at the session. "Some of the most difficult mediations to settle are ones where parties have made significant moves to settle but haven't quite gotten there yet," he says. Silver notes, as there is a hu- man need to test the other side's "mettle" in dispute situations, that parties should anticipate the me- diation dance and leave room to negotiate. As a result, Silver says the party who goes first in the opening gambit in a mediation likely doesn't matter very much. Kelly says the opening gam- parties who go bit is very important, in terms of setting the tone for the media- tion, confidence in the process, in the skills and ability of the mediator, and of a client's own counsel to bring the matter to a resolution or settlement. Ultimately, in order to avoid a stalemate, says Silver, counsel should objectively advise their client from the outset about the case — in terms of the costs and what the court might do, ulti- mately conveying a proper set of expectations. If a stalemate has been reached, parties can also use a mediator to float proposals and shouldn't be afraid to convey to the mediator to keep the process going, he says. LT

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