Canadian Lawyer

22 J A N U A R Y 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m R egina lawyer Rodger Linka became increasingly disillusioned about the litigation process. In a transition period after practising law for 40 years, he took a serious look at the alternative dispute resolution process, recently becoming a mediator. Saskatchewan, like some other Canadian jurisdictions, adopted mandatory mediation for civil actions. There, it takes place after pleadings are filed and before any other steps in the litigation are taken. For Linka, who practis- es at Linka Howe Law Offices, it's not a perfect system and there is plenty of headway to make, but "it is a recognition that the courts are trying to find ways to resolve cases without actually going all the way through the process," he says. While mediation is used to resolve real estate issues extensively in some parts of the country, such as British Columbia and Ontario, it is not as common in others, such as the Maritimes, Manitoba or Saskatchewan, according to the ADR Institute of Canada. But it has been developing as a practice area for lawyers and has gained steam in pockets across the country during the past several years, partly as an access- to-justice mechanism — which is what attracted Linka — and partly as a time- and cost-saving process for all involved. David McCutcheon sees organic growth in mediation to address the specific issues that arise in real estate law, a vast practice area that takes in raw land, development and construction, as well as landlord/tenant issues, and frequently intersects with other AVOIDING REAL ESTATE LITIGATION The use of ADR in real estate disputes has been gaining steam By Marg. Bruineman R E A L E S T A T E practice areas. There are also now more real estate syndications and REITs being included in large investment portfolios, including pension plans. "The more complicated real estate gets and the more sophisticated it gets . . . the more expert requirements there are," says McCutcheon, who served several terms as president of both the ADR Institute of Ontario and the ADR Institute of Canada. He is also currently transitioning out of his Denton's Canada LLP litigation practice in Toronto to full time arbitration and mediation. "This business is going to grow, largely fuelled by, in my view anyway, the more complicated expertise that you see in the real estate world now than you did 20 years ago and the fact that you're going to see mediators who are comfortable with that level of expertise." There are also some areas where mediation is particularly well-suited to resolve disputes, such as those between commercial landlords and tenants. Given that these are often lengthy relationships, it is in the interest of both parties to avoid an acrimonious encounter when they can't resolve an issue or when it comes time for renewal resets under land leases. A mediator might be recruited during lease renewal negotiations when talks come to a stand- still, says Ernest Gutstein, a Toronto lawyer with Goldman Sloan Nash and Haber LLP, who has been practising real estate almost exclusively since 1979. Its preference is further recognized through the introduction of mediation clauses in TANYA LAM

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