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The Ontario Commercial Mediation Act, 2010 (Blog Part I)
This blog post (Part I) considers the provisions of the Ontario Commercial Mediation Act 2010, S.O. 2010, c.16, Sch. 3, concerning the application of that legislation, definitions contained in the Act, its interpretation, commencement and termination of the mediation, and the appointment of the mediator, duty of disclosure, and conduct of the mediation.
Further blog posts on the Act:
(Part II) – will consider other provisions of the Act, including the mediator’s authority, disclosure between parties, confidentiality, admissibility, and the relationship to arbitration and judicial proceedings.
(Part III) – will consider other provisions of the Act concerning settlement agreements, enforcement of settlement, application of the Ontario Rules of Civil Procedure, judgments, orders, the effect of filing agreement, and enforcement of mediator’s fee.
Mediation
The fundamental rule for mediators is to do no harm; that is to say, to leave the parties in a better situation, or at least no worse position, than if no mediation had occurred. Otherwise, it has been said that mediation has no absolute rules.
Commercial Mediation
But when the Ontario Commercial Mediation Act, 2010, SO 2010, c 16, Sch 3 (hereinafter “Act“) applies (and if the parties have not opted out of its application to a mediation), the no absolute rules proposition must be qualified by the limits, constraints and enhanced by the guaranties of the Act.
Definitions
In the Act, “commercial dispute” means a dispute between parties relating to matters of a commercial nature, whether contractual or not, such as trade transactions for the supply or exchange of goods or services, distribution agreements, commercial representation or agency, factoring, leasing, construction of works, consulting, engineering, licensing, investment, financing, banking, insurance, exploitation agreements and concessions, joint ventures, other forms of industrial or business co-operation or the carriage of goods or passengers; (“différend commercial”), and “mediation” means a collaborative process in which, (a) the parties to a commercial dispute agree to request a neutral person, referred to as a mediator, to assist them in their attempt to reach a settlement in their dispute, and (b) the mediator does not have authority to impose a solution to the dispute on the parties. (“médiation”).
Application
Exclusion
By subsection 2(4), the Act does not apply to (a) a mediation under or relating to the formation of a collective agreement; (b) a computerized or other form of mediation in which the mediation is not conducted with an individual as the mediator; (c) actions taken by a judge or arbitrator in the course of judicial or arbitral proceedings to promote settlement of a commercial dispute that is the subject of the proceedings; or (d) mediations for which procedures are prescribed in the Rules of Civil Procedure made under the Courts of Justice Act.
By subsection 2(5), the Act does not apply to the mediation of a commercial dispute to the extent that, (a) the Act conflicts or is inconsistent with the requirements of another Act or a regulation made under another Act; or (b) the application of the Act is excluded or modified by the regulations.
Agreement to Opt Out Of or Modify Application of Act
While the parties may opt out of the application of the Act to the mediation entirely by subsection 2(2)(a), if the parties agree the application of the Act with modifications, in that event they cannot, by subsection 2(2)(b), exclude the application to subsections 4 (4) and 7 (5) of the Act (regarding interpretation of the Act and the mediator maintaining fair treatment of the parties throughout the mediation, respectively).
Binds the Crown
By subsection 2(3), the Act binds Her Majesty in right of Ontario.
Interpretation
By subsection 4(1), the Act is based on the United Nations Commission on International Trade Law’s, (UNCITRAL) Model Law on International Commercial Conciliation (2002)* and, in interpreting the Act, consideration must be given to its international origin, the need to promote uniformity in its application and the observance of good faith. Though not mandatory, the Act permits, by subsection 4(2), its interpretation by recourse to: (a) the Report of the United Nations Commission on International Trade Law on its 35th session; and /or (b) the UNCITRAL Model Law on International Commercial Conciliation with Guide to Enactment and Use (2002).
By subsection 4(3), if a question arises during a mediation that no provisions of the Act or the regulations expressly cover, the question is to be settled in conformity with the general principles on which the Model Law on International Conciliation is based.
Parties to a mediation to which the Act applies may not exclude or modify the application of section 4 of the Act.
Commencement and Termination of Mediation
A mediation commences on the day on which the parties to a commercial dispute agree to submit the dispute to mediation (s.5(1)) and terminates on the earliest of, (a) the day on which the parties reach a settlement agreement; (b) the day on which the parties jointly declare to the mediator that the mediation is terminated; (c) the day on which the mediator, after consultation with the parties, declares that further efforts at mediation are no longer justified and that the mediation is terminated; and (d) the first day that a party whose participation is necessary for the mediation to continue declares to the mediator and to the other party or parties that the mediation is terminated (s. 5(3)).
Subsection 5(4) addresses the continuation of the mediation after a party ceases to participate: and provides that a mediation may continue after the termination of a party’s participation in the mediation if the party’s participation is not necessary in order for the other parties to continue the mediation with respect to issues that are still in dispute. It appears to require that there must be two or more parties remaining in the mediation after one or more retire from it.
Mediators – Appointment, Duty of Disclosure, and Conduct of Mediation
Appointment
The mediation is to be conducted by a mediator appointed by agreement of the parties. (s.6(1)) subject to where the parties ask another person or entity to recommend or appoint a mediator and, if the person or entity agrees to do so, the person or entity shall make every effort to recommend or appoint a person who is impartial and independent (by s6(2)).
Duty to Disclose
By s. 6(3) and (4), a person who is approached to be a mediator shall, make sufficient inquiries to determine if he or she may have a current or potential conflict of interest or if any circumstances exist that may give rise to a reasonable apprehension of bias; and without delay, until the termination of the mediation, disclose to the parties any such conflict of interest or circumstances.
By s. 6(5), a person who makes a disclosure under clause 6(3)(b) before or while acting as a mediator may subsequently act or continue to act as the mediator only with the consent of all parties given after full disclosure of the facts and circumstances.
Conflict of Interest
For the purposes of section 6 (duty to disclose), section 6(6) (a) and (b) provide that a person is deemed to have a conflict of interest with respect to a mediation if the person has a financial or personal interest in the outcome of the mediation; or the person has an existing or previous relationship with a party or a person related to a party to the mediation.
Conduct of the Mediation – Rules and Procedures
Where Agreement
The parties and the mediator may agree on the manner in which the mediation is to be conducted and may agree to follow a set of existing rules or procedures unless prohibited from doing so under another Act or any regulations under this or another Act (s. 7(1)).
Where to Extent There is No Agreement
To the extent that the parties have not agreed on the manner in which the mediation is to be conducted, the mediator may conduct the mediation in the manner the mediator considers appropriate, taking into account any requests by the parties and the circumstances of the dispute, including any need for speedy settlement (s. 7(2)).
* 2002 text (and not the 2018 text). Membership status is provided here, and currently includes two Canadian provinces, Ontario and Nova Scotia, and 12 US states.
(see also blog posts Part II and Part III for other provisions of the Act)
David Alderson, LL.B, LL.M, Q.Arb, Senior Counsel – Commercial Litigation, Commercial Arbitrator and Commercial Mediator
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