"Mediation and Other Stuff"
Dispute Resolution Services
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Welcome to "Mediation and Other Stuff", my monthly newsletter about alternative
dispute resolution from an Ontario perspective.
Only in the UK? Pity! (with apologies to
Red Rose Tea)|
So what is happening with mediation in Ontario? Is its use increasing or stagnant? We don't
really know as there is no data available. In the UK there is astonishing data
that shows the number of civil and commercial Mediations has doubled in two years!
The Centre for Effective Dispute Resolution
(CEDR) has just published its 4th mediation audit for the UK market which is
available online at: www.cedr.com/?location=/news/archive/20100513_347.htm.
The report shows that the mediation market
in the UK has continued to grow with approximately 6,000 mainstream commercial
and civil cases mediated in the last year not including workplace mediations.
The value of the cases mediated is £5.1(C$7.6)
billion. The commercial mediation profession this year will save the British
Economy around £1.4 (C$2.09) billion a year in wasted management time, damaged
relationships, lost productivity and legal fees. Over the last 20 years this
figure comes to savings of £8.8 (C$13.1) billion. By way of comparison the
audit results suggest that the mediation profession total fee income is around
£13.5 (C$20.2) million.
As seems to be the situation here, mediation
users in the UK are increasingly appointing individual mediators directly
rather than using the services of mediation providers and panels.
The projected size of the current civil and
commercial mediation market in the UK is estimated to be around 6000 cases per
annum. This represents a doubling of the market over the last two years.
Again, as in Canada, the make up of the
market is still "dominated by a select few" mediators. For more comment see
Amanda Bucklow's blog post on the topic at: //blog.amandabucklow.co.uk/2010/05/16/the-uk-mediation-market-civil-and-commercial-mediations-double-in-2-years/
This data clearly confirms that mediation saves
money and has other significant benefits to disputants.
Then why are so few disputes resolved by
We know that users of mediation are
generally far more satisfied by the process compared to litigation, irrespective
Perhaps as mediators we have not done a
good enough job marketing ourselves?
If you have any comments about this puzzle,
please send them to me at firstname.lastname@example.org
If you have a dispute and are wondering if
it is suitable for mediation please call me at 905.840.9882 to discuss the pros
and cons of doing so.
Case of the month: Mediator Immunity
Are mediator's protected by
"judicial immunity" in Canada?
Once again, the interesting case law in Ontario seems to be
coming from administrative tribunals and thankfully for mediators, the answer
seems to be "yes".
Michael Fitzgibbon's blog, "Thoughts from a Management Lawyer"
provides an overview of a recent case before the Ontario Human Rights Tribunal
on the topic.
The issue before the Tribunal was whether the doctrine of
judicial immunity applied to a mediator.
In Hazel v. Ainsworth
Engineered available online at: www.canlii.org/en/on/onhrt/doc/2009/2009hrto2180/2009hrto2180.pdf the Tribunal determined that the doctrine of
judicial immunity applied to protect arbitrators and mediators from human
rights claims arising out of the exercise of their decision-making and dispute
The Tribunal noted:
With respect to mediators, I find that
immunity extends to protect the mediator
from claims arising from the exercise of his or her functions in assisting the parties in reaching a
resolution of the dispute, and in facilitating
the settlement discussions. .....After referring
to the mediation agreement, the Tribunal concluded that the allegations against the mediator arose "out of
the exercise of his functions as
mediator in facilitating settlement of civil and/or statutory claims," and, as such, "I find that he
is covered by immunity".
The touchstone for the application of
immunity is to ensure independence
of the decision-making and dispute resolution process. Immunity
applies to those functions that can legitimately be said to be integral to that process, and to the effective
exercise of the duties of the
arbitrator or mediator.
In the end the application was dismissed against the
For more on this interesting case visit:
If you have any questions or comments, please contact me.
Colm Brannigan, M.A., LL.B., LL.M. (ADR), C.Med., IMI Cert., Med., ADRIO Cert. Arb.
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