Law Times

Page 10 April 10, 2017 • lAw Times www.lawtimesnews.com Enforcing a settlement last stage of process BY MARG. BRUINEMAN For Law Times O nce a deal is achieved through mediation and arbitration is signed, the process isn't quite over. Enforcing the settlement, achieved through a number of approaches, is an important part of the alternative dispute resolution process. Minutes of settlement usually serve as a contract to the agree- ment. The strength of ADR is that the courts will support the agreement in the event of default providing there are no irregu- larities. While decisions arriving out of arbitration are binding and enforced in court under On- tario's Arbitration Act, settle- ments arising out of mediation are akin to contracts and are enforceable in court much like a contract. "When you come out of the mediation where you have a successful agreement, you have a contract and a contract is en- forceable in court like any other contract," says David McCutch- eon, director and past president of the ADR Institute of Canada and the ADR Institute of On- tario, and a partner at Dentons Canada LLP in Toronto where he practises environmental and administrative law. A small percentage of medi- ated settlements might include a clause instructing that the agree- ment would be subject to arbi- tration rather than the court, McCutcheon adds. That can keep the terms of the agreement confidential and out of the public domain. But the more natural process would simply be to sue. "The primary option is to sue on the settlement. That is to say, if the mediation process is successful in achieving a settle- ment, then the settlement will be embodied in a contract, often called something like minutes in settlement," says Paul Morrison, a senior litigation partner with McCarthy Tétrault LLP. "If one party is not fulfilling its obligations under the con- tract, then they're in breach of contract and you can sue on the contract." But enforcement of media- tion settlements is usually ame- nable to some kind of summary process. Therefore, the parties can get before the courts fairly quickly to review the process and settle- ment, and when one of the par- ties isn't living up to the agree- ment, the court can enforce it. For the most part, getting support to enforce the settle- ment is fairly straightforward, although Morrison says it's not often necessary. Most who agree to settle in a case honour the agreement and rarely renege. When it does happen, courts, which are eager to encourage settlements, move fairly quickly. "It doesn't happen frequently, but it does happen," says Morri- son of defaults. Markham, Ont.-based per- sonal injury lawyer Darryl Sing- er says he likes to build a provi- sion into a resolution at media- tion that requires performance by one party. The agreement often lays out the terms of the payment, either as a lump sum or as incremen- tal monthly payments over the course of several months or years. A strong agreement will lay out the terms of the settlement that one party consents to the other holding the judgment. "Typically, the most com- mon method, in my experience, is you build in what's called a consent to judgment," says Singer. "So I will essentially have a judgment prepared that will be consented to by counsel for the other party and it's written into the minutes of the settlement that I don't issue that judgment, I don't file and issue that judge- ment at the court, I hold it in escrow. "But if there is a default in the performance of the settlement terms, then I'm at liberty to go and f lop that judgment down on the counter at the courthouse and get it sealed and then I can enforce it the same way I can any other judgment," says Singer. Default on a mediated agree- ment is not common, largely because it's an outcome agreed upon by both parties through a non-adversarial process. Ontario does have a Com- mercial Mediation Act setting out a process that involves taking an agreement under commer- cial mediation to court where it is registered for enforcement, similar to what happens in an arbitration award. But it applies only to commercial cases. Default can and occasionally does happen and there needs to be a plan in place to deal with it when it does, says Brampton, Ont.-based arbitrator and me- diator Colm Brannigan. "You could have a wee bit of FOCUS Paul Morrison says getting support to enforce a mediation settlement is fairly straightforward, although it's not often necessary. See Default, page 12 law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS – FOR L AWYERS AND NON - LAWYERS Untitled-8 1 2015-03-02 11:15 AM . . . if there is a default in the performance of the settlement terms, then I'm at liberty to go and flop that judgment down on the counter at the courthouse and get it sealed and then I can enforce it the same way I can any other judgment. Darryl Singer

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