Law Times

Law Times • apriL 10, 2017 Page 9 www.lawtimesnews.com Mediators largely unregulated in Canada BY MARG. BRUINEMAN For Law Times M ediation has increas- ingly gained trac- tion and is becom- ing an important al- ternative means of settling legal disputes in Canada, but media- tors themselves remain largely unregulated. "Mediation, as part of a broader collection of ADR [al- ternative dispute resolution] tools, is playing an increasing role in our justice system today. There's no doubt that there is a privatization of justice that is happening," says Trevor Farrow, who focuses on the administra- tion of justice as academic direc- tor of the Winkler Institute for Dispute Resolution at Osgoode Hall Law School. "One of the concerns is mak- ing sure that the professionals involved are properly trained and potentially properly regu- lated." The need for mediation clear- ly exists, with only seven per cent of those with legal disputes turning to the formal court or tribunal systems, which are of- ten considered costly and time- consuming routes, he adds. As mediation has matured into an acceptable alternative, it has bred ADR organizations that offer training and set out ethical expectations, certifications and provide some guidance. That has led to self-regulation, which is supported by market forces — if a mediator doesn't prove their worth, further work is unlikely to follow. Unlike the courts system, mediation is a private process that is confidential and not sub- ject to public scrutiny. It is also a non-adversarial process that usually involves willing parties interested in achieving a settlement instead of having a decision imposed upon them by a court, says Paul Mor- rison, a senior litigation partner with McCarthy Tétrault LLP in Toronto. "To a certain extent, the process regulates itself because people just won't use that person as the mediator," says Morrison, whose corporate/commercial cases almost inevitably include mediation at some point in the process. The Canadian and Ontario ADR institutes as well as family and other mediation organiza- tions impose their own stan- dards and codes of ethics, which play a role in consumer protec- tion. They also have educational requirements, so someone with a chartered mediator designa- tion, for example, will have met those obligations. "I think it's more than satis- factory, actually. The reason that it works is that successful, good mediators get the repeat busi- ness," says David McCutcheon, a mediator and arbitrator who practises environmental and administrative law and is di- rector and past president of the ADR Institute of Canada and the ADR Institute of Ontario. "If they're negligent, they can be sued like anybody else." Many will carry insurance, often through a professional or- ganization. And they also protect them- selves through retainer agree- ments indicating where they are excluded from liability. The Ontario Mandatory Me- diation Program also requires certain credentials of mediators and offers a set of guidelines taking in mediation experience, training, education, familiarity with the justice system and ref- erences. It also has a score sheet avail- able online to help mediation committees evaluate applicants. "My concern is if you're go- ing to make it really restrictive, who's going to regulate it," says Brampton arbitrator/mediator Colm Brannigan. In addition, most mediators are lawyers who are already regulated by their governing bodies. The criteria required by the ADR organizations and the best practices approach they adopt ref lects what Brannigan believes is important in the profession. And he wonders if certifications by these organizations would be a more practical approach than "full-blown regulation." A more basic issue Brannigan sees is how to define exactly what mediation is because there isn't an agreement within the media- tion community on its defini- tion. And an ethical framework should be in place before regula- tion is considered. But he does see some benefits to regulation, which includes an assurance to the public that their interests are a primary consider- ation and there would be univer- sal standards. "To me one of the biggest guarantees in making sure that the process, the results are OK, would be to have a lot of em- phasis on the parties either hav- ing, at the very least, legal advice or legal representation for any binding agreement," which gen- erally occurs in practice, adds Brannigan. Often, agreements have a clause allowing for legal review for the party that doesn't have their own lawyer. While the Law Reform Com- mission has expressed a concern over the lack of regulation in the past, it is not considered a burn- ing issue among those involved in mediation. B.C. does provide standards in its new family law regulations, defining who is entitled to prac- tise as a mediator and arbitrator in family law. Although, there is no disci- plinary process or organization attached to it. How it is effective is to give participants of mediation the ability to extricate themselves from the process and perhaps challenge the result. "The standards that are set are really quite high, which is, in my view, entirely appropriate given the seriousness of fam- ily law disputes," says John-Paul Boyd, executive director of the Canadian Research Institute for Law and the Family. "It's better than nothing and, frankly, it's a great deal easier to allow people to police them- selves than go to the trouble of establishing some sort of orga- nization. "Market forces will prevail. If somebody is a lousy mediator, that person isn't going to get a lot of business." The question Farrow looks at is whether formal regula- tion would pass the cost-benefit analysis. "How much . . . is currently at stake and are there bigger is- sues at stake in the justice com- munity that perhaps we should be focusing on before we spend social and economic capital on trying to regulate mediators?" he asks. "Before committing to creat- ing a new oversight body, we'd need a better picture of what are the current issues . . . at stake right now in terms of the cost of not regulating it." He'd like to know the num- ber of situations in which us- ers are poorly served as well as the kinds of outcomes obtained through different types of me- diators. In the absence of detailed study, he says, there can be no absolute determination on the need. And while the idea of reg- ulation has been explored and law societies have looked at the adequacy of lawyers working as mediators, Farrow says he isn't aware of any detailed examina- tion of the issue. At the same time, there doesn't seem to be a crisis crying out for the need of regulation. Although, mediation is ex- pected to play more of an im- portant role in how disputes are resolved and the number of people relying on it is increasing, so that question isn't expected to disappear. "By and large, mediators have become a pretty solid profes- sional group. In the early days when qualifications were a little less rigorous and there weren't codes of ethics, I think the people actually had a pretty broad range of behaviours. I think as the me- diation profession has matured, the bad apples have been pretty much taken out of the profes- sion," says McCutcheon. "It definitely has become a mainstay profession now." LT FOCUS Trevor Farrow says the use of mediation is growing, and there is a concern that professionals may not be 'properly trained and potentially, properly regulated.' Right-sized Thinking® • 1-800-323-3781 • pallettvalo.com Your Authority For: Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts No Matter the Size or Type of Case, We Can Handle It From large complex litigation to simple everyday legal concerns, our broad range of expertise enables us to handle any type of legal issue you may have. We provide forward-thinking, flexible legal counsel that meets each of our client's individual needs – all without compromising service or quality. That's what we like to call Right-sized Thinking®. Untitled-5 1 2017-04-03 3:36 PM

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