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This article is not about mediation, alone, nor about mediation with one individual and arbitration with another. Instead it concerns the aberrant (in my view) process that has developed in family law called “med/arb.” That is, retaining one individual to mediate a family law dispute and permitting the same individual to arbitrate if the meditative process does not work.
Individuals who are considering this method of resolution are urged to reconsider.
A number of years ago a “blue ribbon” committee of family law judges, senior family law practitioners and professionals from related “helping professions” came together to develop a new set of rules for resolution of family law disputes in our court system.
Armed with hundreds of years of combined experience they crafted a new form of court resolution that stressed fairness, case conferences rather than motions and settlement conferences rather than trials. The new approach was designed to discourage fractious, expensive and time consuming battles. The new rules forbade court process until the parties had an opportunity to meet informally (with their counsel, if represented) with a family law judge to discuss methods of early resolution and to structure a plan of action for avoidance of costly litigation.
One of the hallmarks of this new system is the insistence of the staging of a meaningful settlement conference with a judge before the case can move forward to trial. The process provided for by the court rules – called the Family Law Rules (Ontario) – expressly prohibits the judge conducting the settlement conference to be the trial judge in the event that the matter does not settle.
The drafters of the Family Law Rules realized that to conduct a meaningful settlement conference, the judge would be privy to detailed information relating to the case of each party before the court. Further, in the course of the settlement conference, the judge would engage each party (and their counsel) in dialogue designed to explore resolution positions and possibilities. By doing so, the judge would effectively disqualify him/herself from a later adjudicative role. By acquiring information in the settlement conference, the judge could not be expected to “judge” the case at a trial.
Unfortunately, within the private resolution system rapidly taking over the family law world, there is little or no respect for the wisdom of the Family Law Rules prohibition described above. In short, in the public court system, the “mediator,” the settlement conference judge, cannot be the “arbitrator,” the trial judge.
In the private system, out of expediency and/or costs efficiency, the legal profession has permitted the emergence of med/arb, a process wherein one person wears two hats; he/she mediates and if that fails, he/she arbitrates. I have failed to be convinced by the practitioners of this resolution method that they are better able to avoid the pitfalls of working with the parties to try and settle a case and then adjudicating the case if not settled. If experienced family law Judges cannot do this, why can private practitioners acting as arbitrators do this.
In my view, the consumers of family law legal services are not aware of this pitfall until it is often too late. Once a mediation/arbitration agreement is signed it is very hard if not impossible to resile from it. I urge a mandatory disclosure notice to each party before they sign the agreement. They each must be informed that what they are agreeing to (mediation and arbitration with the same person) is forbidden in the public court system by the court rules. The reasons for this prohibition should be explained to each party and a certificate signed by each acknowledging their awareness of this issue should, as a rule, be attached to the agreement.
Caveat emptor (let the buyer beware).