Recent case: Alternative dispute resolution and arbitrator bias

McClintock v Karam 2015 ONSC 1024: The parties in this case had signed an agreement that they would refer any custody and access conflicts they could not resolve on their own to mediation/arbitration.

This is a process in which the parties work with one individual who initially acts as a mediator. If that person is unable to assist the parties in coming to an agreement through mediation, s/he becomes an arbitrator, with the authority to make a decision that binds the parties.

As Justice Gray says in the opening paragraph of his decision:

Mediation/arbitration is a relatively recent phenomenon. Used in the right circumstances, and with proper safeguards, it can be a useful means of dispute resolution. However, care must be taken to ensure fairness, and to ensure that a reasonable apprehension of bias does not arise.

The issue in this case was whether the mediator/arbitrator had acted unfairly, thus creating a reasonable apprehension of bias.

Justice Gray notes the difficulty for a mediator to sufficiently cleanse their mind of everything they heard in mediation when their role changes to that of arbitrator so that both parties feel the mediator/arbitrator is open to persuasion and has not reached a conclusion about the appropriate resolution to the issues.

Yet, he says, this is what the mediator/arbitrator must do, and this is what, in his opinion, the mediator/arbitrator in this case failed to do.

He finds that an informed person would think it more likely than not Mr. Direnfeld (the mediator/arbitrator) whether consciously or unconsciously, would not make a fair decision in his role as arbitrator.

His decision is based on comments made by Direnfeld during a meeting with the parties after mediation had failed to resolve the custody and access conflict. Justice Gray found many of Direnfeld’s comments problematic, but he focused on two:

From my perspective, there’s more than ample evidence and concern to demonstrate that knowingly, unknowingly, inadvertently, intentionally, you’re undermining the relationship of your daughter with her father. That’s a real concern.

You know, behaviour speaks louder. It’s not gonna happen anymore by one of two ways: an arbitration hearing and I change the residential plan, or you change. I have educated, coached, begged, cajoled you. I’m not gonna do any of that anymore. Now I’m gonna arbitrate and you’ll either do it or you won’t. Is that understandable?

Justice Gray concludes that these and other comments strongly suggest that Direnfeld had already made up his mind about what he was going to do and that, therefore, he would not be able to make a fair decision in the arbitration phase of the proceeding.

Justice Gray also points out that Direnfeld was inflexible as to the date of the arbitration, even when informed that the mother’s lawyer would not be available on that date.

He concludes that the mother has established that there is a reasonable apprehension of bias and that Direnfeld has not treated the applicant fairly, as required by the Arbitration Act. He orders that Direnfeld be removed and says that he thinks the arbitration should be conducted by “an arbitrator with legal training, preferably an experienced family law practitioner who can hear the matter fairly quickly.”

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