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April 10, 2017

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Law Times • apriL 10, 2017 Page 11 www.lawtimesnews.com New system means change in role of mediators BY MARG. BRUINEMAN For Law Times S weeping changes to auto accident insurance ben- efits eliminates the use of mandatory mediation, but there is hope that govern- ment strategies introduced in case conferences under the new Licence Appeals Tribunal sys- tem will result in early resolution of cases. The new system ushers in an evolution in the role of the me- diator, says Bernard Morrow, who developed Morrow Media- tion in Toronto after working for many years as a litigator. The idea of finding more ef- ficient means of resolving dis- putes appealed to him, prompt- ing him to study the craft and work on a high volume of files as a Financial Services Commis- sion of Ontario mediator. "There are significant struc- tural changes that have hap- pened in the no-fault regime. FSCO is out of the mediation business now. FSCO played a huge role in the mediation of accident benefits cases for years and years and years. And they were also arbitrating these cases. And now, you've got the LAT taking it over and mediation is not part of the process," says Morrow, who, in addition to personal injury cases, works on employment, commercial and construction law. Now, there are generally no costs awarded at the LAT, so lawyers need to take a hard look at cases to determine if they're worth pursuing, says Morrow. While the mediator's place in the process may be chang- ing, Morrow believes there will always be a role for mediation in helping settle certain cases as well as in catastrophic cases in which there are serious physical injuries. He believes the mediator's role as facilitator in sharing in- formation and providing that reality check remains critical. "The smaller cases, both in accident benefits and in tort, is where there's a big shift. Insurers are becoming more demanding when it comes to determining whether or not they're going to pay any money and to par- ticipate in a meaningful way at a mediation," says Morrow. "The bigger cases, they're still going to be mediated. My view is there is always benefits of bring- ing people together." Personal injury lawyer Dar- ryl Singer has expressed serious concerns with the move to the LAT. And he has noticed a distinct trend by insurers to bring noth- ing to the table and offering lit- tle more than a walkaway. "I think cutting out the me- diation stage was a mistake be- cause I think it gets rid of a lot of files that then don't have to go through to an arbitration," says Singer, who saw 75 per cent of his cases resolved through me- diation before the LAT began. "The two major shortcomings of the LAT is it eliminates very early mediation of the AB [ac- cident benefit] claims and also in many cases eliminates the opportunity for an actual full- blown arbitration in place of a written submission." The government's stated goal in establishing the new system was to develop an efficient and effective way for claimants to access the benefits to which they are entitled through early reso- lution and reduced timelines. Early resolutions can be achieved through case confer- ences, a confidential forum in which the tribunal's jurisdic- tion is explained as well as the process, expectations and mer- its of a case, says Sarah Cope- land, spokeswoman for the office of the executive chair- woman for the Safety, Licensing Appeals and Standards Tribu- nals Ontario. "Case conferences cover all aspects of a case including pro- viding a preliminary assess- ment, resolving some or all of the issues, narrowing the issues, setting hearing parameters, set- ting a hearing date, location and method," she says. "Adjudicators use a variety of techniques, drawing upon some mediation and arbitration prac- tices. While there is no caucus- ing, the parties, along with their representatives, are expected to participate. To date, LAT has experienced a high early reso- lution rate with the case con- ferences helping to drive those outcomes." And while mandatory me- diations are no longer part of the process, Copeland points out that the Cunningham Report recommended that insurers set up formal mediation processes to resolve issues before a case comes to the LAT. And, she adds, there is noth- ing preventing the parties from engaging a mediator outside the LAT process. But the new system is still in its infancy and, while lawyers, claimants and insurers find their footings, the Automobile Accident Benefits Service ex- pects it to remain in a transition phase over the next 18 months to allow it to be refined, process- es and procedures simplified and service levels enhanced, says Copeland. Marvin Huberman, a certi- fied specialist in civil litigation and a chartered arbitrator in Toronto, is looking for potential to achieve settlements without having to go to a hearing in the new system. "The question is what does the LAT system offer perhaps in lieu of the mandatory media- tion," says Huberman. He believes that potential lies in the case conference, pro- viding it is led by someone with training in the principles of me- diation and dispute resolution techniques, even though it is FOCUS Marv Huberman says he is looking for poten- tial to achieve settlements without having to go to a hearing in the new Licence Appeals Tribunal system. Photo: Robin Kuniski See Will, page 12 CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com You work hard to ensure your clients get the best possible settlements. Help them maintain their income-tested government benefits/credits by encouraging them to structure! OAS BENEFIT HYDRO REBATE SENIOR HOMEOWNERS' PROPERTY TAX GRANT ONTARIO TRILLIUM BENEFITS HST/GST CREDIT WITHOUT A STRUCTURE GOVERNMENT BENEFITS ARE THROWN AWAY CANADA CHILD BENEFIT McKellar puts more money in your client's pocket GIS RDSP BOND/ GRANT Untitled-6 1 2017-01-10 2:51 PM

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