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Reform or Replace Commercial Mediation Act: Mitchell Rose

The Advocate Files: Commercial Mediation

 

Toronto Settlement Counsel and Dispute Resolution Mediator Mitchell Rose

Reform or Replace Commercial Mediation Act: Mitchell Rose

By Mitchell Rose
Toronto Mediator and settlement counsel

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

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, principal of Mitchell Rose Professional Corporation, 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 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.

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.

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.”

 

Does this article speak to you? Was it helpful?

The points discussed above are from a lawyer that focuses his practice on mediation. If you require a Mediator in Toronto or Southern Ontario or wish to discuss how a mediator can help you, call Mitchell Rose for details.

View the profile of this Toronto Mediator.

 

This and other articles / posts originally appeared on the now defunct Advocate Daily. As expressed in writing by that website’s owner, the articles / posts, part of a paid service provided by Advocate Daily, are the intellectual property of the lawyer and/or legal service provider who wrote, or for whom the article / post was written and they are free to use as they wish. All articles / posts redeployed on Top Lawyers™ are done with the expressed consent of the Canadian lawyers and other professionals mentioned in said article / post.

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