Today, Canadians are mediating their disputes in record numbers. One partial explanation for this phenomenon is that mediation purports to keep discussions between parties confidential, traditionally backstopped by settlement privilege. But the extent to which parties can pierce this bubble of confidentiality and use information disclosed in the course of mediation in subsequent court proceedings is an evolving issue. read
Players protesting the plan to play the 2015 Women’s World Cup on artificial turf were denied a fast-tracked hearing in Canada over the dispute. The Human Rights Tribunal of Ontario instead offered early mediation between the players and the Canadian Soccer Association. But the CSA announced late Friday it would not take part in mediation. The tribunal’s ruling and subsequent rejection by the CSA came the same day a group of U.S. senators wrote soccer’s international governing body, FIFA, urging it to reconsider the decision to play on artificial turf. FIFA and the CSA are overseeing the World Cup, which will be played in six Canadian cities next June and July. The players, including Abby Wambach, claim that holding the World Cup on artificial turf amounts to gender discrimination because men play soccer’s premier tournament on real grass. read
Dozens of parents have delivered a petition with more than 11,000 signatures to the BC legislature. Mother Jordan Waters says the group wants the government to join the teachers’ union in mediation. “I am disillusioned with our government and their unwillingness to make public education a priority. I think it’s really short-sighted and they don’t see how investing in children is investing in our economic prosperity in the long run.” read
Trying to get a divorce? Wondering why it’s taking so long and costing so much? Family courts are backlogged because we’ve been conditioned to believe the divorce process has to be both litigious and expensive. But it doesn’t have to be either of those things. If we applied some common sense — putting the beginning of our next chapter ahead of the retaliation we feel for ending the last chapter — it could be a much smoother process. The Ontario government knows that marriage dissolution is a right mess. It’s looking for ways to encourage people to talk it out rationally in order to keep families out of court. That’ll keep more money in people’s pockets too. read
Separating couples who choose mediation may now both be eligible for legal aid family lawyers as Legal Aid Ontario (LAO) expands its pilot province-wide. Starting July 3, when one of the mediation clients is financially eligible for a lawyer, the other mediation client may also be eligible, as long as they earn up to a maximum of $50,000. This new service, which began as a pilot in select locations in February 2014, has LAO covering the cost of a family lawyer for up to six hours of support and advice for financially eligible clients participating in mediation. Clients can receive advice about the process before starting a mediation, assistance in preparing for the mediation and legal advice after the mediation to help them understand their rights and obligations under the mediated agreement. The lawyer can also assist with obtaining a court order or binding agreement based on the terms of the mediated agreement. read
On May 8, 2014, in Union Carbide Canada Inc. v. Bombardier Inc., the Supreme Court of Canada rendered an important decision on the confidentiality of settlement negotiations, in the context of private mediations. Union Carbide Inc. and Bombardier Inc. agreed to participate in a private mediation process. Their mediation agreement contained a standard confidentiality clause, providing that nothing transpiring during the mediation process could be alleged, referred to or sought to be put in evidence in a subsequent proceeding. At the end of the process, the parties thought they had reached a settlement, but then disagreed on its terms. As a result, Bombardier filed a motion to homologate the transaction before the Superior Court of Québec, making it public. Union Carbide moved to strike the allegations pertaining to events that occurred during the mediation, claiming that they were covered by the confidentiality clause in the mediation agreement. read
On May 8, 2014, the Supreme Court of Canada issued a unanimous judgment that is important for anyone who participates in private mediations. In Union Carbide Canada Inc. v. Bombardier Inc., the Supreme Court of Canada considered the interaction between the protection granted by private agreements providing for confidentiality of the mediation process and the common law privilege that covers settlement discussions. Specifically, the Supreme Court addressed the issue of whether a mediation agreement stipulating confidentiality of anything said or written during a mediation displaces the recognized exception to the privilege that allows the parties to prove the terms of a settlement agreement. read
A second trial slated for Monday between feuding neighbours in the R.M. of Grant has been referred to mediation. Facing one count of assault, Michael Price will be heading to mediation in early May. The charge stems from an incident in which the family’s dog, an eight-month old Saint Bernard, was shot and killed by their neighbour, Eugene Krawchuk when it wandered into their pasture. Referring the case to mediation requires that Price accept responsibility for his actions and participate in either mediation or a court diversion program, such as counselling. According to a Justice Ministry alternative measures program manual, if the mediation or alternative program is completed successfully, the charge will be withdrawn. read
Under a new pilot aimed at reducing unrepresented family litigants and improving outcomes, Legal Aid Ontario (LAO) will cover the cost of a family lawyer to support clients who choose mediation and to transform those agreements into legally-binding documents. "In looking at expanding access to justice for low-income Ontarians, mediation is a good alternative to having a judge or a third party step in to resolve family relationship issues," says John McCamus, Chair of LAO. "This voluntary process empowers people to resolve their family legal issues for themselves - and with this pilot, they can be assured that the end result is legally binding." read
The Critical Role of Mediation in Bridging the Access to Justice Gap Robyn McDonald For more than a decade, Colorado has worked to provide access to justice (ATJ) for its indigent and modest means citizenry. Despite efforts by the bar and the courts, the state continues to struggle in its pursuit. What has been so often overlooked, however, is how mediation provides the courts and litigants an affordable, efficient option to resolving many disputes.
British Columbia Proposes Online Dispute Resolution Tribunal
The Ministry of Justice for British Columbia has introduced the Civil Resolution Tribunal Act to establish a tribunal to provide online dispute resolution services. The legislation would establish an escalating four-phase process in which participation would generally be voluntary. Parties would first rely on self-help using interactive online tools, the second phase would move to assisted negotiations online, while the third phase would include intervention by a case manager. The final phase would be a tribunal hearing, which could also be online, with final tribunal decisions filed in court and enforceable as court orders, with only limited judicial review. Parties would not be allowed to use legal counsel, except in limited circumstances; Canadian lawyers’ associations oppose the legislation.
Time to Connect With Our Roots Susanna Jani These are interesting times in the BC justice sector. The BC Justice Review, led by Geoffrey Cowper Q.C., is continuing, the Ministry of Justice tabled Bill 44 (the Civil Resolution Tribunal Act) in early May and the criminal prosecutions from the Vancouver riot in June 2011 are crawling along through the system. It causes me to ponder the role of the Dispute Resolution (“DR”) community in all of this. How can we make a difference? How can we help to improve access to justice for BC citizens?
Canada Allows Banks to Use Private Mediators in Client Disputes
Canada has decided against forcing banks to use the Ombudsman for Banking Services and Investments (OBSI) and will provide new regulations permitting them to hire private mediators to resolve client disputes. OBSI was created in 1996 to handle complaints against banks and since 2002 has also been responsible for resolving investment complaints; investment dealers are still required to use OBSI. The issue arose after Canada’s two largest banks, the Royal Bank of Canada and Toronto-Dominion Bank, withdrew from OBSI in favor of private mediation and other banks were expected to follow. However, some consumer advocate groups and regulators are concerned that if banks hire private mediators the independence of the mediators could be compromised.
My “Big Three” BC Family Law Information Powerhouses Susanna Jani It comes as no surprise that many of our readers have been wondering about British Columbia’s new Family Law Act. I confess to wondering about it also. It has been quite a few months since it received Royal Assent, and the suspense about it is beginning to grow.
Canada’s Banking Ombuds Calls on Regulators to Require Banks to Mediate Client Disputes
Canada’s Ombudsman for Banking Services and Investments (OBSI) is asking regulators to mandate that banks continue to use the independent national agency to settle any disputes with clients that the banks cannot resolve internally. The issue arose after Toronto Dominion Bank announced plans to withdraw from OBSI and begin using another ADR service which Royal Bank of Canada has been using since it left OBSI three years ago. OBSI was created to handle complaints against banks and since 2002 has also been responsible for resolving investment complaints.
Beyond Adjudication: Resolving International Resource Disputes in an Era of Climate Change Anna Spain Climate change is one of the greatest emerging threats to global peace and security. Among other impacts, climate change will exacerbate the scarcity of water, food, and other natural resources essential to human survival. One concern is that as these resources become scarcer, the frequency and severity of international disputes will increase. Thus, developing effective means for resolving international resource disputes is of critical global importance.
Second Canadian Province Enacts Commercial Mediation Statute
Ontario has followed Nova Scotia in enacting a statute specifically addressing commercial mediation. Ontario’s Commercial Mediation Act of 2010 permits agreements reached in mediation to be registered and enforced as court judgments. Commercial mediation does not include disputes over insurance benefits, collective bargaining disputes, computerized mediation or informal attempts by judges or arbitrators to encourage settlement while presiding over litigation or arbitration proceedings. The statute requires certain disclosures by mediators relating to possible conflicts and bias and sets forth mediation confidentiality requirements. The statute is based on the UNCITRAL Model Law on International Commercial Conciliation, which has also been incorporated by several states in the U.S. when enacting the Uniform Mediation Act. The Ontario statute focuses on pre-litigation mediation and does not apply to the mandatory mediation provisions of the Rules of Civil Procedure. The statute took effect with commercial mediations that commenced on or after October 25, 2010 in Ontario or even outside the province if the parties stipulate coverage of Ontario law.
Ontario Appellate Court Penalizes Refusal to Mediate
The Ontario Court of Appeals imposed a $40,000 penalty on an insurance company for refusing to mediate a personal injury case it considered to be outside the statutory requirement for mediation. The lower court found that the case was within the statutory threshold, but accepted the insurer’s position as legitimate. However, the appellate court took a harder line in imposing the penalty and emphasized the requirements of participating in mediation and attempting to settle expeditiously.
Ontario Chief Justice Calls for Greatly Expanding Judicial Mediation
Ontario Chief Justice Warren Winkler proposed in a lecture which will be published this fall that the increasing cultural shift towards mediation requires that the court system adapt by providing judicial mediation in civil cases as a routine matter. The Chief Justice is concerned that without much more mediation by judges the court system will lose relevance. In addition, he believes that courts need to provide direct mediation services so that the benefits of mediation are not limited to those who can afford private mediators. The Chief Justice notes that judges are often in the best position to mediate cases because parties take judges’ views seriously. On the other hand, he notes that there are many hurdles to be surmounted, such as courthouses not designed for handling mediations in large numbers, mediations often continuing beyond court hours, and sitting judges who may have neither the aptitude nor desire to be mediators.
Tribe Seeks Mediation of Ongoing Dispute with Canada Border Services Agency
A dispute over the arming of Canada Border Services Agency officers at a station on the reservation of the Mohawk Council of Akwesasne has festered for many months despite attempts at dialogue and visits by several Members of Parliament. The tribe has been suggesting mediation since the beginning of the conflict. Both sides may finally be leaning toward mediation as the only way to resolve the issues.
Mediation Resolving Psychological Harassment Complaints in Quebec
Mediation successfully reaches agreement in 95% of the workplace psychological harassment cases mediated by the Commission des norms du travail in Quebec. In the four years since legislation was enacted protecting employees from psychological harassment, about 8,600 complaints have been filed and a little over a third have been resolved through mediation. Of complainants using mediation, 85% reported they were very satisfied with the mediator’s work.
Mediation Defense Fails to Prevent Criminal Penalties Flowing from Unauthorized Practice of Law in Canada
A paralegal was sentenced to four months of house arrest for contempt of court in Ontario after violating a permanent injunction prohibiting the practice of law. The paralegal unsuccessfully asserted that she was merely involved in mediation, which is not regulated, because she advertised that she could prepare legal documents and provide services relating to uncontested divorces.
Toronto Judge Avoids Court Meltdown by Enhancing Mediation Programs
Facing a potential “meltdown” of the Toronto court system, which is the third largest in Canada, Justice Warren Winkler introduced a three-phase mediation system to encourage parties to settle, and created specialized pools of judges to mediate in specific areas. Even with 30,000 civil lawsuits being filed annually, wait times for long trials are now down to one year, compared to three years in 2004 when Justice Winkler was appointed Senior Regional Justice.
Canadian Music Society to Mediate with Artistic Director
The Ottawa Chamber Music Society is preparing to mediate with its popular artistic director, Julian Armour, who recently resigned. The plan for mediation came out of a meeting of more 300 concerned music lovers, and may include a longer-term role for the mediator to assist with other organizational issues.
Businesses Increasingly Seeking Mediation in Canada
Business disputes in Canada are increasingly turning to mediation, and more mediators are available to resolve them, according to the ADR Institute of Canada and others. Both attorneys and business people are recognizing that mediation can provide better and more subtle solutions to complex business disputes than going to court, as well as saving time and money. Full blown litigation is seen more and more as costly brinkmanship. Ten years ago, Canadian Supreme Court Justice George Adams shocked colleagues by stepping down from the bench to begin a mediation practice, but he has seen lawyers become much more sophisticated in planning for and using mediation over the last decade.