Med-arb and bias

“Used in the right circumstances, and with proper safeguards, [med-arb] can be a useful means of dispute resolution. However, care must be taken to ensure fairness, and to ensure that a reasonable apprehension of bias does not arise.”
McClintock v. Karam, 2015 ONSC 1024

I have written about med-arb and its effectiveness here. The most important consideration is the ability of the mediator to remain neutral and appear to be neutral when entering into the arbitration role. There are few reported cases of apprehension of bias in med-arb, so this recent decision from the Ontario Superior Court is instructive.

This was a family law dispute, focusing on custody and access. Strangely, there is a transcript of the final mediation session, before the attempt at arbitration. In the transcript the mediator called the daughter a spoiled princess and strongly suggested that unless the mother stopped undermining the father-daughter relationship he would order sole custody to the father.

The judge showed an appreciation of the med-arb process, describing the two stages as follows:

[69] In order to effectively mediate, the person appointed must engage in a process that has a good deal of informality. Mediative techniques include persuading, arguing, cajoling, and, to some extent, predicting. Mediation is a process to secure agreement, if possible. All of those techniques, as well as others, will come into play in trying to secure agreement.

[70] If the mediator/arbitrator must move to the arbitration phase, it cannot be expected that he or she can entirely cleanse the mind of everything learned during the mediation phase, and of every tentative conclusion considered, or even reached, during the mediation phase. However, at a bare minimum the parties are entitled to expect that the mediator/arbitrator will be open to persuasion, and will not have reached firm views or conclusions.

In this case, the Court found that although it is clear that the mediator/arbitrator would have formed some tentative impressions or even conclusions about the issues in dispute, “it was important that he remain open to persuasion and refrain from expressing strong views that might disclose a predisposition to decide one way or the other.” The judge then referred to a number of excerpts from the transcript that strongly suggested that the mediator/arbitrator had already made up his mind on contentious issues.

The judge found that there was a reasonable apprehension of bias and removed the mediator-arbitrator from the case.

Compounding the comments made in mediation, the mediator-arbitrator also scheduled the arbitration on short notice and refused to grant a 2-month adjournment when the mother’s counsel requested it based on a previously booked trip and the need to prepare for the arbitration.

Large portions of the mediation transcript are included in the decision, and are instructive. Not only is it clear which way the mediator-arbitrator is leaning, it also shows the rising level of frustration he has with the mother’s actions.

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Publications

Columns published on slaw.ca

"Chapter 22: Unions and Collective Agreements", in Palmer and Snyder, Collective Agreement Arbitration in Canada, 4th edition, 2009 and 5th edition, 2013.

“Non-consensual expedited processes: the intersection of fairness and expediency”, Lancaster House.

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