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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 45 from a case for creating an impression that he "had already made up his mind on issues that were very contentious" prior to an arbitration hearing, said Superior Court Justice Douglas Gray in McClintock v. Karam. Gray cited some excerpts from a meeting Dundas, Ont., medi- ator-arbitrator Gary Direnfeld held with the sparring parents of a 10-year-old girl. In those comments, Direnfeld essentially tells the mother he'll arbitrate in favour of the father, who requested custody of the child, since the mother has allegedly tried to alien- ate the girl from her father. "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 media- tion phase, and of every tentative conclusion considered, or even reached, during the mediation phase," Gray wrote. "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." Even opponents of the process admit "top notch" lawyers are doing this work. Still, they say that doesn't negate the blurred lines. Joseph says he's uneasy about the fact that lawyers, who can be "chummy" with other lawyers, could sit as mediator-arbitrators in cases involving their pals. The kind of distance that marks the rap- port between the bar and judiciary is missing in med-arb, he says. "No judge will come to my house this weekend," he adds. "It's a totally different relationship." The other issue is regulation. One does not need to be a lawyer to become a mediator-arbitrator. Although the ADR Institute has guidelines for mediators and arbitrators, it does not act as a regula- tor of the profession. The institute has a disciplinary process, but its executive director Janet McKay says it rarely receives complaints. At worse, the institute can deny membership, but membership isn't a prerequisite to practise. Members of the ADR Institute are required to have a minimum of 40 hours of training in addition to some work experience. B.C.-based family mediator Carol Hickman, along with her col- league Arlene Henry, recently began offering courses for mediator- arbitrators. Hickman, who completed her LLM thesis on med-arb a year ago, believes the course is the first one in North America offered specifically on med-arb. Everything comes down to train- ing, says Hickman. "You're not just a mediator and you're not just an arbitrator and mushing the two together," she says. "You really need to realize that this is a new process." Through the med-arb course, Hickman hopes participants consider three important concepts: Caucus, bias, and confidential information (CBC). "You have to be very conscious of caucus and what you do in caucus," she says, adding when a mediator-arbitrator is meeting privately with one party, the other party may be suspi- cious of what went on. Flowing from that, the mediator-arbitrator can become privy to confidential information, says Hickman. "And so what do you do with that confidential information? Do you completely disabuse your mind of it? Do you disclose it?" In Australia, the law is that you must disclose the confidential information you've become privy to while acting as a mediator-arbitrator, says Hickman. The third concept is bias, or the appearance of it. Mediator- arbitrators are encouraged to consider the potential pitfalls of mak- ing "evaluative comments" that might give an appearance of bias, Hickman adds. Those comments include telling parties they will lose or win. In the end, it's all about choosing the right professionals for the job, according to Hickman. David McCutcheon, national director of the ADR Institute, agrees. "The really skilled mediators and arbi- trators, the people who are really good at it, I think do a good job," says McCutcheon. Although mediation-arbitration is not a regulated profession, McCutcheon is not concerned about lack of competency. "The market tends to sort out who the good people are," McCutcheon says. "I think the market is pretty sophisticated; lawyers repre- senting clients have a pretty good understanding of who is good and who is suited to their case." www.kuretzkyvassos.com Tel: (416) 865-0504 BARRY KURETZKY AND GEORGE VASSOS LEXPERT ® RANKED SINCE 1997 AND SELECTED TO BE IN "BEST LAWYERS IN CANADA" Untitled-1 1 13-12-04 9:49 AM

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