Canadian Lawyer

44 A U G U S T 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m With WestlawNext Canada you can research in a way that's most natural for you and not miss a thing. Search across multiple content types, then further sort and fi lter results to focus on what's relevant. WestlawNext Canada continuously recommends related content that you may not have considered so fewer searches are required. Less Searching. More Finding. Discover more at westlawnextcanada.com 00227MO-A48601 IT'S EASIER TO END YOUR DAY WHEN YOU KNOW IT'S THE END OF YOUR SEARCH. whose practice is largely family law med-arb. First, Wolfson says, the debate is limited to a small number of cases that are not resolved in the mediation phase of med-arb. Although there's no reliable data, Wolfson says anecdotally, 80 to 85 per cent of cases are settled, making the bias in arbitration argument moot in a majority of cases. That's a "phenomenal track record," Wolfson adds. "I would say don't throw the baby out with the bathwater. Don't throw it out because there may be problems for the 15 per cent." The med-arb process is also voluntary, he says. "Nobody forces anybody to get into med-arb, unlike the court sys- tem where you can be dragged into it because the other party wants to go. If you don't like it, don't go into it." Also unlike the court system, which assigns parties a judge arbi- trarily, participants in med-arb choose the professional who works with them, allowing them to pick someone with specific cultural or other specialized knowledge. As to hearing details you shouldn't be hearing as an adjudica- tor, proponents of the med-arb process argue judges do it, too — they sometimes listen to evidence they later choose to exclude. Voir dire hearings are an example, they say. "That argument is thrown out all the time," says Joseph. While it's true that judges hear evidence in voir dire, that's different from sitting in a room with parties for hours and hearing their thoughts, strategies, and positions, he says. "You hear the grain of the case, often. You hear about offers, you hear about positions." He says it's "human- ly impossible" to later disabuse yourself of what you've heard. But there's a simple solution to that, says Wolfson: get two dif- ferent people to do the mediation and arbitration portions of the proceeding. He, adds, however, that he personally prefers the one- person model for efficiency and cost saving. Wolfson says in recent years, med-arb agreements have advanced to allow parties to see exactly what they're getting into, including some of the limitations of the process. "When people commit to med-arb, why are they committing to it? They're paying a mediator-arbitrator out of their own pocket when the government gives you a free judge. They're paying for this process because they want to know there's finality," Wolfson says. "They want to know that within a reasonable period of time — six to eight to 10 weeks — there's going to be a resolution. That's the guarantee that you get in med-arb." The debate around this ADR scheme was recently reignited after an Ontario Superior Court judge removed a mediator-arbitrator L E G A L R E P O RT \ A D R 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. . . . ONTARIO SUPERIOR COURT JUSTICE DOUGLAS GRAY in McClintock v. Karam

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