FAMILY LAW MED/ARB: THE BEST OF BOTH WORLDS? Introduction

Transcription

1 FAMILY LAW MED/ARB: THE BEST OF BOTH WORLDS? Introduction Apart from the feminist critique of mandatory mediation as an inappropriate dispute resolution vehicle for certain vulnerable women, family law mediation is widely accepted as a preferred method to resolve family law disputes. 1 Even the inevitable tension between mediators and collaborative family law professionals has not sullied the brand that family law mediation has attained. 2 If mediation is such an attractive solution, query whether the combination of mediation with family law arbitration is a better way to ensure finality and closure in family law cases? With the advent of family law arbitration in British Columbia, and the success of family law mediation, can this duo of alternate dispute resolution techniques be the answer for lawyers and clients who are determined to stay clear of a courtroom as they work through the issues arising from marital breakdown? This article will explore the synergies between mediation and arbitration, assess the already established med/arb procedures and review the efficacy and ethics of this partnership. A. THE HISTORY OF MEDIATION/ARBITRATION San Francisco lawyer Sam Kagel is considered to be the father of med/arb as a result of the process he devised to settle a nurses strike in the 1970 s in California. 3 He believed that as an arbitrator his first duty was to assist the parties to resolve their differences via a process of mediation and where impasses arose, arbitrate the remaining issues. In 1978 the state of Wisconsin legislated med/arb, the first state in America to give statutory recognition to this new method of dispute resolution. In Canada in the late 1960 s, Chief Justice Alan Gold of the Quebec Superior Court introduced med/arb for port disputes on the St. Lawrence River. He viewed the process as not only 1 Patricia E. Edwards, Gender Issues in Family Law: A Feminist Perspective, Family Law Review, Vol. 35, Issue 4, p, 424, October Rebecca Glass, Tipping Civility: Developing Collaborative Law in the US and Canada 3 Richard Fullerton, The Ethics of Mediation-Arbitration, 38 Colorado Lawyer, May 2009

2 desirable, but necessary if the business at the ports was to survive. The reality was that if a work stoppage was threatened or acted upon, time was of the essence, a mandate that would not allow the dispute to wind through the courts for weeks or even months. The Chief Justice declared that med/arb was born and became the order of the day, and indeed of the night, and of the weekends and of the holidays. 4 Chief Justice Gold later negotiated such high-profile disputes as the Quebec/Oka standoff, the David Milgard wrongful conviction compensation claim, and the Airbus/Mulroney controversy. In the early seventies, med/arb was used to resolve labour and construction disputes in Quebec and in the creation of Via Rail. By the 1990 s med/arb was employed in a variety of industries including nursing, journalism, public utilities, education, commerce, professional athletics and environmental concerns. B. THE MEDIATION PHASE In mediation the parties select a mediator/arbitrator to assist them in negotiations to resolve the issues in dispute. The process is confidential and voluntary, and often in family law, conducted without lawyers present. Most mediators encourage, even expect clients to consult counsel before the mediation begins and along the way, as issues arise where legal advice is required. While clients and mediators alike recognize that legal information imparted by a mediator/arbitrator to the parties is an important feature of mediation, critics of med/arb question how freely an arbitrator conducting a preliminary mediation can offer legal information or legal opinion, when to do so may signal the arbitrator s views on a particular legal issue. Proponents of med/arb, however, believe that the authority of the arbitrator, and his or her final decision-making power lends credibility to his or her carefully chosen remarks and enhances their professional mandate to mediate and later arbitrate, if necessary. One of the increasing criticisms of family law mediation is the overuse of caucusing, to the exclusion of any joint mediation sessions with the parties and the mediator, a concern that must also be addressed in med/arb. 5 4 Megan Elizabeth Telford, Med-Arb: A Viable Dispute Resolution Alternative, IRC Press, Queen s University 5 Friedman and Himmelstein, Challenging Conflict: Mediation Through Understanding, 2008, American Bar Association Publications

3 There are no guarantees in the mediation phase. Either party can terminate the process at any time, leaving a bad taste in the opposing party s mouth, particularly where the negotiations have compelled a party to disclose matters they now regret because they perceive a prejudice to them in the arbitration phase, or where the parties believe they have wasted their time and money on mediation. C. THE ARBITRATION PHASE Where mediation has not been successful on one or more issues, the arbitration phase begins. Typically, everything that has been said by the parties in the presence of one another during the mediation is evidence in the arbitration hearing, unless objections are made by the participants or the arbitrator rules that certain statements will not be taken into account. Notably, this evidence is not sworn; however, one of the hallmarks of arbitration is flexibility with respect to the rules of evidence. 6 One of the perceived benefits of arbitration following upon a mediation session is that most or all of the facts will be known, thus eliminating the lengthy process of adducing the relevant facts of the case. The issue of confidential information imparted to the arbitrator during the mediation phase is one that deserves particular attention. From an ethical perspective, it is expected that such information will not be considered by the arbitrator, just as a judge of the court cannot rely on inadmissible evidence in a court proceeding. Additional sworn evidence is usually presented and the parties may stipulate that only this evidence can be considered by the arbitrator. Opening and/or closing statements may be delivered. The arbitration process is one that is devised by the parties with the assistance of the arbitrator, so each arbitration can be tailor-made to suit the parties. One size does not fit all. Of course, the overriding feature of arbitration is that a written decision, called an award, will be made in a timely manner, usually within thirty days of the completion of the arbitration. While certainty is ensured, appeal options are limited: the ultimate goal being the final resolution of a dispute. 6 Lorne Wolfson, Family Law Arbitration in Canada Presented at the Federation of Law Societies National Family Law Program, July 2010

4 D. THE CHALLENGES OF MED/ARB There can be no doubt that med/arb in the wrong hands presents a minefield of problems. The answer, in my view, to the concerns raised by critics of med/arb is that professionals acting as neutrals in med/arb must have the following credentials: 1. They must be senior family law lawyers or judges who have years of experience in all areas of family law; 2. They must have a reputation for the highest ethical standards and be respected by their peers; 3. They must have a superior knowledge of the rules of evidence and principles of natural justice; 4. They must have formal credentials in mediation and arbitration and participate in continuing legal education. 5. A Code of Ethics must be implemented and embraced by arbitrators who conduct med/arb. If arbitrators fulfill the above criteria, they have a good chance of deflecting the critics of med/arb whose complaints include the following: 1. Arbitrators who mediate have too much power, which may result in mediated settlements which reflect the views of the arbitrator and not the parties; 2. Neutrals who work primarily as arbitrators may push towards arbitration, thus denying the parties a real opportunity and the necessary time to resolve their own dispute; 3. Arbitrators who receive confidential information during the mediation phase cannot be relied upon to disabuse themselves of the confidences imparted to them; 4. Med/arb participants will use the mediation phase as a time to convince the neutral of the righteousness of their position, rather than focus on achieving a mediated solution; 5. Med/arb participants may be motivated to restrict information and clam up in order to avoid prejudicing themselves during the arbitration phase; 6. Arbitration awards should be based solely on evidence presented by the parties during the arbitration phase;

5 7. Only the participants should determine when the mediation phase should be terminated, not the neutral; and 8. Arbitration can be as expensive as litigation. E. FORMS OF MED/ARB In response to the concerns of critics of med/arb, the following forms of med/arb have developed: ARB/MED is a process where the parties arbitrate their dispute by calling sworn evidence, producing and relying on documents, providing an agreed statement of facts in certain cases, and fully espousing their legal positions at an arbitration hearing. Once the hearing is concluded and a decision is written by the arbitrator, but NOT released to the parties, the arbitrator will conduct mediation, fully apprised of the parties legal positions and the strength of their respective cases. If the mediation is unsuccessful, the arbitrator will release his or her award. The benefits of arb/med are readily apparent: no confidential information is known by the arbitrator, and the evidence before the arbitrator is deemed reliable. The downside is the expense of an arbitration hearing which may not have been required. It is unlikely that family law clients will be attracted to this form of med/arb, mainly because of the cost and the simplicity of process that family law clients want and deserve. MED/ARB SHOW CAUSE is similar to traditional med/arb with one exception. If the mediation is unsuccessful and arbitration is necessary, the arbitrator will release his or her preliminary decision, allowing the parties to show cause as to why the decision is not appropriate. The arbitrator will then consider the arguments presented and issue a final binding award. MEDIATION AND LAST OFFER ARBITRATION is conducted by a neutral that attempts to mediate the parties dispute and if unsuccessful, determines which of the parties final offers ought to be chosen as the binding award. This method eliminates the need for a formal arbitration hearing following the mediation, but may be susceptible to the same criticisms as traditional med/arb with respect to evidence and confidential information. It is certainly a more costeffective way of arriving at a resolution. MED THEN ARB is a process like traditional med/arb, however, there are two neutrals involved in the process, the first a mediator and the second an arbitrator. Often, MED THEN ARB occurs by default, where the parties believe they can resolve their dispute through mediation, then

6 fail, and hire an arbitrator. The obvious downside is the expense of two separate procedures and the time and fees expended for two neutrals to get up to speed on the facts, the evidence and the parties positions and interests. Some critics say that Med Then Arb is not a form of med/arb, but simply one process followed by the other. I tend to agree. CO MED/ARB is similar to Med Then Arb. Both a mediator and an arbitrator are retained and both are present and involved in the fact-finding portion of the mediation phase, whereafter the arbitrator withdraws from the mediation. Where caucusing is in order during the factfinding stage, the arbitrator will not participate in the caucus in order to ensure that no confidential information is disclosed. If the mediation is successful, no arbitration is necessary. If mediation does not resolve all the issues, the mediator withdraws, while the arbitrator conducts the arbitration. If the parties wish to attempt further mediation, the mediator is reengaged, while the arbitrator backs off. Once again, the cost of two neutrals is a factor that may make this process unattractive to family law participants. In my opinion, the costs of med/arb can and should be controlled by the parties. If a couple want Cadillac arbitration with dozens of witnesses, and intend to spend an unlimited amount of time in direct and cross examination, then yes, their med/arb will be costly. But one does not have to engage in a lengthy arbitration if the parties, their counsel and the arbitrator can work together to narrow the issues, define the methods of proof and impose reasonable time limits. F. DO ETHICAL ISSUES MILITATE AGAINST FAMILY LAW MED/ARB? Med/Arb is not a perfect solution to the emotional and financial trauma inherent in family law disputes, but it is a superior model when compared to the traditional let s duke it out in Court mindset. The ethical concerns arising from med/arb can be entirely eliminated if a separate mediator and arbitrator are engaged, however, families in crisis can rarely afford two professionals to assist them, never mind their need for separate counsel to represent their unique interests G. SUMMARY In my view, traditional med/arb with a highly specialized, qualified, ethical lawyer neutral provides a reasonably priced option for couples who wish to maintain control of their dispute, until it is apparent they cannot resolve all their issues through mediation. Anecdotal information from family law arbitrators confirms that med/arb is increasingly popular and more often than not, disputes are settled in the mediation phase. Ontario

7 arbitrator Phil Epstein describes med/arb as one-stop shopping and those who insist the process is inherently flawed may never accept this stream-lined process that is both flexible and adaptable. Perhaps most importantly, med/arb works because husbands and wives will no longer tolerate the systemic inertia that litigants suffer at the hands of a family law justice system that is past its due date. Family law consumers are becoming increasingly sophisticated. They no longer want to pay for lawyers to sit in court hoping for a judge, neither do they want to wait twelve to eighteen months for a trial date with a judge who either doesn t know or doesn t want to know the increasingly complex nuances of family law.