Med/arb – could this alternative Canadian concept work for us?

‘It’s not often that the colonials can teach the Brits anything but maybe this once.’

This was Levison Meltzer Pigott partner Jeremy Levison’s introduction to Stephen Grant, a Canadian family lawyer who, while in London last month, shared his experiences of mediation/arbitration, or med/arb, with a group of forty London-based family lawyers and judges.

Stephen’s entertaining endorsement of the process, which we don’t practice here in the UK, sparked lively debate at the Levison Meltzer Pigott hosted event at the Vitrine Art Gallery.

Stephen’s credentials are second to none. He is an experienced family lawyer; principal of the Toronto-based counsel and ADR firm Grant & Sadvari and has appeared in courts across the country as well as the Supreme Court of Canada. He is a mediator/arbitrator, certified by the ADR Institute of Ontario  as a family arbitrator and founded Resolutions Inc., a dispute resolution collective, in the early 1990s. Stephen is a fellow of the American College of Trial Lawyers (ACTL) as well as a fellow of the International Academy of Matrimonial Lawyers of which he was the first President of the Canadian Chapter. He is the editor of the Advocates’ Journal, the publication of the Advocates’ Society, co-editor of the ACTL Bulletin and editor-in-chief of the Ontario Reports. He is the co-author of Lawyers’ Professional Liability, now in its 3rd edition, and was awarded the Law Society Medal in 2006.

Jeremy Levison, founding partner of boutique London-based family firm Levison Meltzer Pigott, has had a long association with Stephen and has been fortunate, through him, to become familiar with and indeed a supporter of the med/arb process.  Whether this country is ready to embrace this alternative form of dispute resolution is far from clear but Jeremy happily seized the opportunity of Stephen’s visit to London to ensure that, at this time of exploration of other possibilities in avoiding full-on litigation, this Canadian concept is part of the mix.

So what is med/arb?

It is a private alternative dispute resolution process, judicially endorsed and statute based, entered into voluntarily by the parties with an adjudicator of their choice, invariably a top lawyer (or retired judge) with both mediation and arbitration (or trial) experience.

If the parties cannot agree on a resolution through mediation, the mediator then puts on their arbitrator’s hat and imposes a solution upon the parties. The arbitrator can also determine interlocutory issues eg production of documents, preservation of assets or interim support.

If mediation, in whole or part, is unsuccessful, the parties then arbitrate the remaining issues, much like a trial – presenting their evidence and submitting their arguments to the arbitrator. The arbitrator then decides the issues and presents an arbitration award which is legally binding but, at least in Ontario, subject to the right of appeal. The extent of the appeal rights is negotiable as part of the med/arb agreement.

Part of the theory behind this process is that the parties will take the mediation more seriously and work harder at reaching a consensual resolution when they know that the process will ultimately result in a binding decision.

The mediation and arbitration are linked but separate processes. Although controversial to civil lawyers, the arbitrator is required to make their decision based solely on the evidence presented in the arbitration proceeding, not on any information – confidential or otherwise – received during mediation.  In other words, the mediation focuses on parties’ interests in arriving at resolution, the arbitration strictly on parties’ rights and obligations.

Stephen made it clear that for the experienced mediator/arbitrator, this is not as difficult to do as some of the mediation-alone nay-sayers might maintain. (For instance, judges often hold voir dires on the admissibility of certain evidence and if they rule the evidence inadmissible, completely ignore it.) He said that of all of his own med/arbs, he has only had to use any form of arbitration in perhaps15% of the cases. Only once or twice has he had an arbitrated decision been appealed, the most recent on a procedural issue (which was duly dismissed by the appellate judge).

The parties are expected to have independent legal advice before and during the entire process. A certificate verifying this is provided when the med/arb agreement is signed. The med/arb agreement is also an arbitration agreement and provides the rules for arbitration in it.

When parties enter in a mediation/arbitration, they waive their right to litigate the issues in court, further or at all.

Is there a future for med/arb in this country?

Based on his experience in attending at med/arbs in Toronto, Jeremy is convinced that of all the ADR dispute-solving mechanisms, this is possibly the best. Of course, it depends on the participants (and their lawyers) wishing to resolve their case in a timely and cost-effective manner, as well as having complete faith in the ability and neutrality of the mediator/arbitrator. In this regard, however, they have the freedom of choice. So this is a hurdle easily crossed.

Within the room there was much enthusiasm for the concept and maybe this was the first step in introducing the practice into this country. Stephen will be back in March, 2014 speaking to the Arbitrator’s Conference, chaired by Grant Howell of Charles Russell LLP.

Jeremy Levison is a partner at Levison Meltzer Pigott and Stephen Grant is principal of the Toronto-based counsel and ADR firm Grant & Sadvari