Family law has long been receptive to alternate dispute resolution, and mediation-arbitration is no exception.
The hybrid process of mediation-arbitration begins as mediation. If and when an impasse is reached, the mediation terminates and the arbitration commences. Mediator-arbitrators wear two hats - acting first as mediator, then as arbitrator should mediation stall. Selecting the best person to act may mean sacrificing skills in one of these areas.
In Marchese v. Marchese (2007) 35 R.F.L. (6th) 291, the Ontario Court of Appeal endorsed mediation/arbitration as a valid dispute resolution alternative. Despite this recognition, some commentators continue to question whether it is appropriate. A mediator is a neutral third-party meant to focus on the interests of the disputants and assist them in coming to a settlement. An arbitrator, conversely, is a fair and impartial decision-maker, deciding the issue based only on the evidence, in accordance with the law. It is questionable whether these two seemingly conflicting processes can work together.
Mediation/arbitration is lauded for the same reasons it is condemned: the mixing of processes and roles. Once the parties have developed a rapport with the mediator in that process, the question becomes whether the same person should arbitrate.
Some believe that there should be no prior relationship between the parties and the decision-maker and that the process is tainted if the person who attempted collaborative settlement is then required to make a quasi-judicial finding. There are also concerns about the arbitrator’s ability to ignore inadmissible evidence gleaned in the mediation and make a decision in a neutral fashion.
Many civil litigators refuse to accept mediation/arbitration as a valid process. Conversely, mediation/arbitration has been lauded by many family lawyers as an efficient and cost-effective way of resolving disputes. Informal surveys show that a large percentage of mediation/arbitration cases settle in the mediation phase.
Hand in hand with the question of the appropriateness of mediation is the practical issue of how to select a mediator-arbitrator for a particular case. Often, it involves sacrificing certain skills to secure other talents. In custody cases, parties may select a mental health professional to mediate, but that same person may not be the best individual to arbitrate since the skill set may not be the same. It is unlikely that someone is equally talented as a mediator and arbitrator.
If counsel are going to sacrifice in one area, the prevailing view is to opt for a more skilled mediator, since most cases settle before getting to arbitration. The selection of the decision-maker is done on a case-by-case basis and is a fact-driven determination. Training and educational background are just two of the many factors considered in the selection process.
All arbitrators must comply with the Ontario Arbitration Act and, more generally, with procedural fairness standards and the rules of natural justice. When either an experienced family lawyer or an experienced psychologist acts as arbitrator, the result is a specialized decision-maker. The parties have, therefore, opted out of the court process, where litigants get the luck of the draw with respect to the judge.
Clients often pick mental health mediators for their skills with children. However, if the case proceeds to arbitration, the same psychologist may not be qualified to arbitrate. Having a mental health arbitrator might yield a more creative and developmentally appropriate parenting plan, although he or she may not be as well versed in the rules of natural justice.
Such arbitrators may be ill equipped to handle the legal framework and, in particular, the procedural fairness requirements that must form part of the arbitration process.
In Kainz v. Potter  33 R.F.L. (6th) 62 (Ontario S.C.J.), the parties contracted to resolve child-related disputes by arbitration with a named psychologist. The mother later argued that the psychologist failed to conduct the arbitration in accordance with the Arbitration Act. Having chosen a psychologist as an arbitrator, the court ruled that the psychologist could not be held to the standard of a legally trained person. However, the fact that the psychologist was not a lawyer did not give him the right to conduct an unfair arbitration, as arbitrators must adhere to standards of natural justice. The court concluded that the hearing was not fair to the mother as it was replete with procedural and evidentiary flaws and set aside the award.
Mediator-arbitrators must have all the necessary expertise - training and supervision are obvious solutions. The regulations made under the amended Ontario Arbitrations Act compel family law arbitrators to receive the training approved by the Ministry of the Attorney General.
To date, the required training is insufficient. Every family arbitrator must have received at least 14 hours of training in screening parties for domestic violence. All non-lawyer family arbitrators must also complete 30 hours of training in Ontario family law. In addition, family arbitrators must participate in 10 hours of training over any two-year period, half of which must address domestic violence.
Any other training is merely "recommended" or "suggested". Hence, no training in the conduct of an arbitration or in legal process is required to arbitrate in Ontario.
Formal arbitration training should be mandatory. Hopefully, minimum requirements for formal qualifications and training as well as membership in a professional organization will soon be mandated.
The ADR Institute, for example, has approved designation of certified family arbitrators. Unfortunately, this designation is not required in order to arbitrate and, to date, there is no governing body to discipline and oversee arbitrators. Counsel are, therefore, warned to review a mediator-arbitrator’s experience and training so that the arbitral award is not later at risk.
The Lawyers Weekly, September 12, 2008