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ADR, Mediation

Reform or replace Commercial Mediation Act: Rose

It may be time to reform or replace Ontario’s Commercial Mediation Act, 2010 (CMA), Toronto mediator and settlement counsel Mitchell Rose writes in The Lawyers' Daily.

The CMA “promotes mediation for dispute resolution with the certainty provided by a uniform set of rules, along with the assured enforcement of mediated settlements by the court,” while leaving open the option of litigation if no settlement is reached, he explains.  

Yet Rose, partner with Stancer Gossin Rose LLP, writes that many lawyers have never heard of the “vital and powerful” legislation, partly because of its limited scope.

Although the definition of “commercial disputes” over which the CMA applies is broadly drafted, Rose writes in the article that, in practice, the term “may be conceived of narrowly by counsel or parties.” The title of the Act may also be enough for parties to dismiss it without much thought, he says.

By renaming the CMA as the Mediation Act and expanding it to cover a wider area of disputes, he says the law could attract the attention it deserves from the legal community.

Even better than a revamped voluntary CMA would be a comprehensive mandatory pre-litigation mediation framework, Rose writes.

“This could lead to a decrease in time, cost and risk to parties in conflict — and fewer lawsuits,” he says in the article.

Based on the United Nations Commission on International Trade Law (UNCITRAL) model, the CMA mirrors legislation in Nova Scotia and several U.S. states, and introduced “an international regulatory framework for the conduct of mediation and the judicial enforcement of mediated settlements, Rose writes in the article.

Among its highlights, Rose points out the following: 

  • It does not apply to collective agreements, computerized mediation or other forms of mediation not conducted by an individual, actions taken by a judge or arbitrator in the course of judicial or arbitration proceedings, or mediations provided by Rules of Civil Procedure (after the commencement of litigation) such as Mandatory Mediation.
  • With some exceptions, parties can modify the provisions of the CMA or opt out of it altogether.
  • The CMA provides a code regarding the conduct of the mediations to which it applies, including commencement and termination, appointment and duties of a mediator, and the mediation process itself.
  • Confidentiality of information and inadmissibility in arbitral, judicial or administrative proceedings.
  • Transformation of the mediation into a mediation-arbitration on consent of the parties.
  • The possibility of agreeing not to proceed with arbitral or judicial proceedings before a mediation is terminated.
  • The finality of mediation settlement agreements and their enforcement by the court, including the ability to apply to the registrar of the Superior Court for an order authorizing “the registration of the agreement with the court.”

Rose will discuss various prelitigation settlement tools, including the CMA, as a panellist at the Ontario Bar Association program “Effectively Utilizing the Continuum of ADR Processes” on Nov. 15, 2017.

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