Debate over the ability and for there to be real or apprehended bias for the same person to mediate and arbitrate a case stems from a misconception of the duties and roles involved, says Toronto family lawyer Herschel Fogelman. “Mediation is not an outcome, it’s a process and arbitration it’s not a process, it’s an outcome,” says Fogelman, a family law lawyer, mediation and arbitrator at Basman Smith LLP. Fogelman says he is often retained to mediate and potentially arbitrate within the same case. He states that because the roles and duties placed on him in those two roles are so different there possibility of actual bias is non existent,.
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