Law Times

Page 12 April 10, 2017 • lAw Times www.lawtimesnews.com a problem because you really then are into a litigation process, which, of course, is what you were trying to avoid in the first place," says Brannigan. The minutes of settlement can be made into a judgment or a lawsuit could be launched through the contract process. Brannigan says it's a little eas- ier to enforce a settlement that comes out of a case already in litigation. In the event of a default, a motion might be brought to en- force the settlement. "One of the things I strongly recommend is when lawyers come to mediation they bring some kind of draft agreement with them with the terms that are really important to them," says Brannigan, adding that the parties can use it to cross- reference later to avoid buyer's remorse that could lead to fur- ther dispute or default. "You can do amazing things if everyone's on board." Arbitrated decisions also require some kind of default mechanism, says Mitchell Rose, who prefers to spell out what happens in the event of a default instead of relying entirely on the Arbitration Act. "If the agreement is silent as to what happens in the event likely to be an arbitrator instead of a mediator. It can go beyond the procedural housekeeping issues and delve into settlement discussions as well. "I think the case conference provision in this system could replace and even supplant or ex- ceed the expectations or the re- sults that were achieved from the former FSCO mediation," says Huberman." "If settlement is what they want, I think the government has given the opportunity on a silver platter for that to happen, not through mandatory me- diation but through case confer- ence." There's no question that us- ers of the new system are going to have to adapt to a new reality, says Adam Wagman, president of the Ontario Trial Lawyers' Association and senior partner at Howie Sacks & Henry LLP where he practises personal in- jury law. The absence of mandatory mediation means that other ways to achieve solutions must be found. But at the same time, he be- lieves mediation has become something of a crutch over the years. Wagman is hopeful that the case conference, while somewhat different from mediation, can lead to some resolution, at least to settle the issues in dispute. And because the intent is to resolve cases through the LAT within six months even with a hearing, there is incentive early on to achieve a settlement. "The old-fashioned settle- ment meeting where a couple of lawyers used to get together in a room for half an hour and talk frankly and openly about the case has essentially disap- peared and people have relied very heavily on mediation and the mediation process in order to get cases settled," he says. But he believes there is still a role for mediation to play. He points to benefits claims in dis- puted catastrophic impairment cases where the doctor for the injury victim finds the injury falls into the new definition of catastrophic and the doctor for the insurer doesn't. And because there's a drop in the amount of insurance money available for benefits, there is concern that money will run out before any tort claim gets to court, so there will be increased pressure to settle. "Generally speaking, the par- ties want to settle their cases before and after these changes were made. So that desire is still there," says Wagman. Ian Kirby, a personal in- jury lawyer with Gilbert Kirby Stringer LLP in Toronto, was among the first to start media- tion about 30 years ago in his personal injury practice where he does mostly defence work. He thinks it's too early to tell how the new system will work out. Any new regime, he says, is followed by a learning curve and leads to new approaches and strategies. "We are still largely in that learning period," Kirby con- cludes. "I don't think mediators have to worry about finding new oc- cupations just yet." LT of the breach, then the rules do come into play," says Rose. In the case of a monetary settlement, the terms of the pro- cess could spell out interest or larger settlement amounts if it is not paid by a certain time as security. "It also stands as a dispute resolution mechanism because if you don't fulfil to the terms of the settlement, the parties have agreed to judgment without having to go through the formal trial process and it also provides an incentive," says Rose. LT Continued from page 10 Default on a mediated agreement is not common Will LAT mean early resolution of cases? Continued from page 11 FOCUS Untitled-2 1 2017-04-03 2:47 PM Darryl Singer has expressed serious con- cerns with the move to the new Licence Appeals Tribunal system.

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