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Baseball umpires – mediators?

  • Baseball is in the air.  The pre-season has finally begun.  Could spring be far behind? 
  • Even though I’m a mediator, and should have great empathy with umpires, I’m not really there on that one.  There is much more oversight by way of instant replays in other sports, such as football and tennis, and bad calls are often overturned, which is only fair. 
  • Perhaps it’s time for baseball to get with the programme.  Those who would complain that the game is already too slow and instant replays would further slow it down are, in my view, merely not baseball purists.  The game is meant to be slow. 
  • For a true baseball fan, it’s all about the leisurely pace – except when it’s frenetic. 
  • Let’s get the video replay more involved in baseball, but unlike football, let’s quicken up the review process, so those who crave speeding up the game can get back to their BlackBerrys.
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Mediation Arbitration Agreements

  • So far I’ve mostly discussed the process of mediation arbitration.  Another very important issue is the mediation arbitration agreement itself. 
  • The agreement sets out all of the issues to be determined.  It is the rule book by which the mediation/arbitration will be governed. 
  • Firstly, make sure it sets out all of the issues to be determined. 
  •  In a family law situation, those issues can include: custody and access; child and spousal support; equalization of net family property; sale of the home; etc. 
  •  It will also deal with what appeals can be taken of the decision if one party or both are dissatisfied with the terms of the arbitral award. 
  • Another issue is whether there will be a reporter present during the arbitration; where the arbitration will take place; who will fund it; etc. 
  • Before the mediation/arbitration begins, all of these issues should be resolved by way of a carefully vetted and signed mediation/arbitration agreement with independant legal advice received by both parties.

Mediation in estate disputes

  • Litigation creates winners and losers.  Mediation has the potential to preserve relationships.  In an earlier blog I wrote about such advantages of mediation.  To expand upon that, let’s look at estate disputes.
  •  The opposing parties are invariably family members fighting over the cottage, the silverware, the stock portfolio, and the like.  Once the dispute goes to the Courts, the likelihood is that the loser (and litigation invariably creates winners and losers) will resent the winner, and may never speak to him or her again.  As well, since often the legal costs come out of the estate, unless one party was being extremely unreasonable and is required to pay his or her own costs (and possibly the other party’s as well), both parties will be angry with the other by reason of the depletion of the estate assets in order to fund the litigation. 
  • With mediation, a middle ground is sought and often achieved, which makes winners of both, thereby potentially preserving the relationship. 

More on power imbalance screening

  • Without power imbalance screening and appropriate measures being taken, the mediation or arbitration process is potentially a sham. 
  • If after screening for power imbalance the mediator or arbitrator is forewarned of the existence or the potential existence of an imbalance steps can be taken, such as ensuring that the arrival and departure of the parties is staggered, or that they are never left alone during the mediation or arbitration. 
  • It is essential that each party believes that he and she can bargain fairly in mediation, and present his and her case fully at arbitration.
  • It is only after power imbalance screening that the mediator or arbitrator can be satisfied that all steps required to be taken have been taken to ensure a fair process. 

Mediator/arbitrators screen by law – why don’t judges?

  • The first step for a mediator or arbitrator is to ascertain whether there is a power imbalance.
  • Often that task is relegated to each party’s lawyer.  In most cases, the lawyer is ill equipped to carry out that task. 
  • Courses are offered to train individuals on how to determine whether power imbalance exists. 
  • By law (Arbitration Act of Ontario), secreening must take place prior to arbitration. 
  • Unfortunately, there is no requirement for power imbalance screening prior to either mediation or litigation. 
  • Query how a judge could determine whether one party to a lawsuit was threatened with dire consequences by her spouse if joint custody was opposed or even not awarded. 
  • Frankly, the judge would have no way of knowing that circumstance.  The problem is the cost of administrating such screening in advance of all family law procedures such as Motions and trials.
  • It’s still a good idea though – whose time has come.

Power Imbalance in Mediation and Arbitration (but not litigation)

  • I’ve not yet defined power imbalance or explained why it’s such an important issue in mediation and arbitration. 
  •  Power imbalance is fact or perception of an unequal bargaining position. 
  • The Arbitration Act of Ontario requires that parties to an arbitration process be first screened for power imbalance by an independent party. 
  • The importance is obvious.  In an extreme example, if one party has told the other that they’ll be killed along with the children unless joint custody is agreed to and ordered, the ability of the party so threatened to effectively argue the case is rather limited. 
  •  Generally, steps can be taken to both identify and overcome power imbalance. 
  • In coming blogs we’ll continue to discuss that important issue.

Mediation issues: self-represented parties and power imbalances

  • Primarily for economic reasons, more and more individuals are representing themselves in both court and at mediation/arbitration. 
  • This poses a problem for the judge or arbitrator, particularly if only one side has a lawyer, but also if both are unrepresented. 
  • Before embarking on mediation and especially before starting arbitration, both parties should be screened for power imbalance. 
  • The other issue that poses a problem for the mediator/arbitrator is maintaining neutrality.  You can’t be giving one party legal or even procedural advice to the seeming detriment of the other side. 
  • The next several blogs will deal with some of the issues in dealing with self-represented parties in mediation/arbitration.