Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 5 43 awyer Gary Joseph says some years ago, he dodged a legal bullet. He was sitting in a breakout room with a fam- ily law client. A mediator-arbitrator would come in to talk to them before going to another room to speak to the other party in a process similar to shuttle diplomacy. "The mediator came into our room and he began talking about the evidence that we have and our expert report and [started] making some negative comments about the expertise of our expert and some other things that our expert did," Joseph recalls. "When he left the room, my client turned to me with just daggers in his or her eyes and said, 'What have you done to me? How could this person possibly be fair to me after telling me that my expert report has 16 different holes in it?'" "That client was dead right," adds Joseph. Had that client not approached their spouse later and worked out a deal in their matter, Joseph says he may have well faced a lawsuit initiated by his client. "There will be lawyers sued very signifi- cantly for entering into these agreements," he says. "It's our responsibility to ensure that the client is protected at all times and I don't know if [in med-arb], the client is protected at all times." While mediation-arbitration in the fam- ily law context is a fairly recent phenom- enon, there's been a growing controversy around its use. The thrust of the concern is that mediators, who are privy to a lot of sensitive information during the settle- ment phase of proceedings, should not later become arbitrators of the same case. Some lawyers are uncomfortable with the role switcheroo, something they say the Family Law Rules have rightly barred in the court system. "Those rules specifically addressed this problem and said, 'No. If you're a settlement conference judge, you can't do the trial,'" says Joseph. "Many senior members of the family law bar have felt that they can rise above that problem; that they are better, they won't be tainted, they won't be influenced. They [believe they] can engage in med-arb and totally disabuse themselves of everything they have heard in mediation and then arbitrate the case." Lawyer Patrick Schmidt, a partner at Thomson Rogers in Toronto, says there would be "outrage" if a civil judge who heard pre-trials said he was going to sit as a trial judge in the same matter. "I think the process, combined mediation-arbitration, lacks a certain amount of integrity," he says. The ADR Institute of Canada says it has 2,000 members, but it wasn't able to provide the number of people specifically doing med-arb in Canada. While vociferous opponents like Joseph cast doubt on the integrity of the pro- cess, others hail it as an efficient and cost- effective alternative to drawn out court proceedings. The Ontario Court of Appeal has recog- nized the process as a legitimate method of dispute resolution in family law, says Lorne Wolfson of Torkin Manes LLP, L E G A L R E P O RT \ A D R JEANNIE PHAN Controversy dogs family med-arb By Yamri Taddese L

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