When choosing a mediator/arbitrator, you better choose right. Otherwise, the consequences can be devastating.
I had a case involving a couple with young children where we settled all issues by a Separation Agreement. The spouses agreed to a dispute resolution clause in their Agreement that directed all future disputes to a named mediator/arbitrator. The parents then signed the named mediator/arbitrator’s agreement.
Within weeks, the father wanted one of their children to play ‘Select‘ hockey. The mother was of the view that hockey was a good idea for their child, especially ‘House’ league, but that the scheduling demands of Select hockey, its impact of that demanding schedule on their other child and their inability to have downtime or participate in other activities did not justify this higher level of competitive hockey.
Given that the parents were separated, and that the children went back and forth between their parents every 2-3 days, the frequency and demands of the Select hockey schedule (with its weekly practices, games and out-of-town tournaments) effectively usurped the family’s life schedule.
This is where it became evident that it is extremely important to properly vet your mediator/arbitrator before signing a mediation/arbitration agreement.
In this case, only after the mediation/arbitration agreement was signed did the wife discover that the mediator/arbitrator had a particular view of competitive sports. During the course of the mediation stage, the mediator/arbitrator disclosed that his/her son played competitive baseball and, in fact, he/she had served as the coach in his/her son’s baseball league.
During mediation, it became apparent that the mediator/arbitrator supported the father’s views on competitive sports and disregarded any of the mother’s considerations. The mother raised with the mediator/arbitrator her concerns for fairness and impartiality. This caused the mediator/arbitrator to become even more critical of the mother and supportive of the father.
When the mother asked the mediator/arbitrator to step down, he/she refused. When the mother brought a motion for the mediator/arbitrator to withdraw due to a reasonable apprehension of bias, her motion was dismissed. In fact, the father contested the motion and brought his own motion for the child to be registered in Select hockey.
The mediator/arbitrator went ahead and dismissed the mother’s motion and granted the father exactly what he asked for. The mediator/arbitrator disagreed with all of the mother’s concerns.
In a 43 page arbitration decision, the mediator/arbitrator attempted to justify that his/her experience with children in competitive sports was rather a benefit to the family. He/she claimed to have a better appreciation of this issue because of his/her personal experience.
The mediator/arbitrator wrote:
“This case is about, and has always been about, XXXX, not my children or my family. But since XXXX is alleging that I have strong views about competitive sports, allow me to be clear. Our two children now XXXX and XXXX, have engaged in a variety of activities over the years, both rep and house league, including house league soccer, house league hockey, competitive dance, and competitive baseball. Some were short-lived, some have continued with respect to each. My XXXX and I had good discussions as to when each should start and end…The point is that having a child engaged in competitive or rep activities or sports does not make that parent biased or less qualified to make a decision in court or arbitration. If anything, it makes them more qualified because they are fully aware of the positives and negatives associated with all that comes with it.”
What the mediator/arbitrator did not address is the fact that he/she is raising his/her children in an intact marriage and that any decisions or sacrifices regarding his/her children, whom live with both parents in one home, were made mutually and consensually with his/her spouse, unlike divorced parents.
In dismissing the mother’s motion, the mediator/arbitrator recited the case-law regarding motions for the recusal of a ‘judge’.
However, there are many differences between public judges and private mediators/arbitrators, in respect of bias. Judges are federally appointed by the legislature through a very rigorous vetting process. Then they are under daily watch and their written decisions are public record and subjected to public appeals. Private mediators/arbitrators’ awards go unchecked and lack oversight unless appealed.
For vetting a private mediator/arbitrator, there is no past library of awards to allow lawyers or potential clients to read and consider in order to ascertain their views, philosophies and leanings. That is why the disclosure obligations on mediators/arbitrators should be more strict or else clients may find themselves locked into a mediation/arbitration agreement with no right to terminate, no exit plan and no recourse to the courts.
In mediation/arbitration, the person that will hear the motion regarding the bias and removal is the subject mediator/arbitrator, in private. Of course, the client can proceed with an application to court, but that is a very expensive, protracted and difficult process.
When a matter is in court, once a judge provides an opinion at a pre-trial or conference, that judge is then precluded from serving as the motions judge or trial judge. This policy is to protect the fairness of the legal process, ensure that the decision-maker has no past knowledge of the parties and that justice “is seen to be done”.
But in mediation/arbitration, the standard mediation/arbitration agreement permits the mediator to become the arbitrator, and even includes a waiver of the statutory prohibition at section 35 of the Arbitration Act that is meant to ensure the neutrality of the decision-maker. Section 35 states “The members of an arbitral tribunal shall not conduct any part of the arbitration as a mediation or conciliation process or other similar process that might compromise or appear to compromise the arbitral tribunal’s ability to decide the dispute impartially.” Thus, in mediation/arbitration, because of the fact that the mediator turns into an arbitrator, there is a higher need for full disclosure in order to ensure that the selection process results in a tribunal that is unbiased, fair and equal to both parties. Full disclosure can include past and current paid and volunteer positions, affiliations and predispositions that are material to the issues in dispute.
In the case of judges, judges are paid with public monies, whereas in mediation/arbitration, the mediator/arbitrator is paid privately by the parties.
Thus, the standards for disclosure and assessing bias is different in private mediation/arbitration than in public court. In fact, section 11(2) of the Arbitration Act provides: “Before accepting an appointment as arbitrator, a person shall disclose to all parties to the arbitration any circumstances of which he or she is aware that may give rise to a reasonable apprehension of bias.” This mediator/arbitrator disagreed that there was a “reasonable apprehension of bias”, and it was his/her decision to make.
In this case, the mother was unaware of the bias until it was too late and her legal rights were limited.
It got worse.
The mediator/arbitrator invited cost submissions.
The mother stated that she should not be punished for raising concerns for fairness in private mediation/arbitration. Despite this, the mediator/arbitrator ordered the mother to pay the father costs in the amount of $9,500 in a 13 page decision.
It should be noted that the father was representing himself in the mediation/arbitration, he did not suffer any income loss because he was a public employee earning $175,000 per year and he incurred no legal fees. The mother argued that any costs payable to the father would have been a wind-fall to him and be additional (tax-free) income that he would otherwise not have earned. Again, such arguments were dismissed. In fact, the arbitrator released his costs award within hours of receiving the parties’ written submissions, causing the mother to wonder if her written arguments on costs were even considered.
In the end, the mother was punished for voicing her concerns with respect to neutrality of the arbitrator.
In McClintock v. Karam, 2015 ONSC 1024 (CanLII), the court considered the issue of fairness in private mediation/arbitration and stated “…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” and “[w]hile the mediator/arbitrator would undoubtedly have had discussions with the parties about these issues, and would have formed some tentative impressions or even conclusions about them, it was important that he remain open to persuasion and refrain from expressing strong views that might disclose a predisposition to decide one way or the other.”
The mother could have appealed the awards and brought an application before the court to remove the mediator/arbitrator and appoint a substitute arbitrator. However, after she paid her lawyer for his time, paid the mediator/arbitrator for his time and paid costs to the father, she had little financial means or energy to pursue an appeal. [Note that the Arbitration Act requires a client to make an application to the court to remove an arbitrator within 10 days].
It got even worse.
The mediation/arbitration agreement has no termination date. The children are young. That means that this mother is forced to have every parenting issue addressed by this mediator/arbitrator and cannot ever seek relief in court. This mother naturally believes that anytime she would ask the mediator/arbitrator for relief in the future, he/she will likely side with the father. Hence, this mother will be reluctant to seek any relief. Moreover, the father is emboldened by his success with this mediator/arbitrator and continues to conduct himself with brazenness, believing that the mother will be fearful of seeking any relief from this mediator/arbitrator.
In the end, this mother is now locked into a mediation/arbitration process with a mediator/arbitrator who has displayed partiality to the father, criticism of the mother, refusal to self-reflect and where the mother has no access to the Ontario court.
So I say, when choosing your mediator/arbitrator, be absolutely certain that he/she is balanced, fair and free of bias. Even then, ensure that the mediation/arbitration agreement has a termination date.
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