Further to our blogs (Part I, Part II, and Part III) on Ontario’s Commercial Mediation Act, 2010, S.O. 2010, c. 16, Sched. 3 (the “Act”), where we provided an outline of the various sections of the Act, this blog endeavours to neutrally highlight some, but not all, of the major differences between the Act and some of the popular institutional mediation rules. In particular, we contrast the Act with the following institutional mediation rules: ADRIC National Mediation Rules, ICC Mediation Rules, WIPO Mediation Rules, and LCIA Mediation Rules (collectively the “Rules”).
This blog does not attempt to outline any of the similarities between the Act and the Rules, though some similarities may surface within the blog nonetheless. Rather, this blog serves only to impartially outline differences between the Act and the Rules.
Application
The Act applies automatically to any mediation of a commercial dispute, subject to a number of exceptions (as outlined in our Part I blog), which commences after October 25, 2010.
Parties have the option to opt out of the application of the Act or opt out of certain enumerated provisions of the Act. In contrast, the Rules do not automatically apply, and so there is no need to opt out of their application. Rather, the Rules will only apply where the parties to the mediation agree to have them apply.
The Act also binds the Crown, whereas the Rules do not.
Interpretation
When interpreting the Act, consideration must be given to the following:
- The Act’s international origin (i.e. the United Nations Commission on International Trade Law’s, (UNCITRAL) Model Law on International Commercial Conciliation(2002));
- The need to promote uniformity in its application; and
- The observance of good faith. Any question that cannot be determined by reference to a provision of the Act must be settled in conformity with the general principles under UNCITRAL.
No such requirement relating to interpretation is referenced in any of the Rules.
Commencement of Mediation
According to the Act, a mediation commences on the day on which the parties to a commercial dispute agree to submit the dispute to mediation. However, it specifies that if one party invites another party to mediate, and does not receive a response within 30 days, or within any period specified in the invite, the mediation invitation is considered rejected.
The Rules, in turn, state that a mediation is initiated once one or more parties take steps to mediate.
The ADRIC National Mediation Rules states that a mediation is initiated once any party serves a written request to mediate on all other parties to the mediation. There is no need for the other parties to accept the request.
The ICC Mediation Rules states that where there is an agreement to refer to these rules, any party can commence mediation by filing a written Request for Mediation with the ICC International Centre. The Request for Mediation should also be sent to all other parties. The date on which the Request for Mediation is received by the ICC International Centre is deemed to be the date on which the mediation commences. The WIPO Mediation Rules has a similar procedure.
Where there is no prior agreement to mediate, parties that wish to mediate under the ICC Mediation Rules or the WIPO Mediation Rules need to send a written Request for Mediation to the respective centre. If the parties wish to mediate under the WIPO Mediation Rules, they also need to send the Request for Mediation to all other parties, while under the ICC Mediation Rules, the ICC International Centre would do so.
Similarly, under the LCIA Mediation Rules, where there is an existing agreement to mediate, any party can deliver a written Request for Mediation to the LCIA Court. A copy of the Request for Mediation must be sent to the other parties. The mediation would commence on the date the LCIA Court receives the Request for Mediation. Where there is no prior agreement to mediate, in order to commence the mediation a party must still submit the Request for Mediation to the LCIA Court, however, a party can decline to mediate. With no prior agreement, the commencement date of the mediation would be the date on which the parties agree to mediate (same as in the Act).
Conflict of Interest
Both the Act and the Rules require a mediator to be impartial. Unlike the Rules, the Act specifically provides that a person would have a conflict of interest in the mediation if that person:
- Has a financial or personal interest in the mediation; or
- Has an existing/previous relationship with a party, or with a person related to a party, to the mediation.
Though these two forms of conflict may be obvious, and are potentially captured by the Rules, they are specifically outlined in the Act, but not enumerated in any of the Rules (though the Code of Conduct for Mediators appended to the ADRIC National Mediation Rules does specify that a mediator cannot have a personal interest or any other conflict of interest).
Disclosure of Information Between Parties
The Act allows a mediator to disclose any information that the mediator is provided by a party to the mediation to any other party to the mediation (subject to that party’s specific request that the mediator not disclose said information).
No such provision exists in the Rules. As such, if the mediation is governed by any of the Rules, the mediator would have discretion, and possibly even the duty, to disclose any information that the mediator becomes privy to between the parties, regardless of whether the party that provided that information objects to its disclosure. However, the Rules do not preclude agreement between the parties to limit such disclosure.
Admissibility of Information
The Act prohibits admission into evidence in any proceeding a number of matters (outlined in our Part II blog) including any invitation by a party to mediate a commercial dispute, or a party’s willingness or refusal to participate in the mediation. It also prohibits admission of any information exchanges between the parties that took place before the mediation and any agreement to mediate.
However, any of the foregoing is admissible if:
- All the parties consent to the admission;
- The admission is otherwise required by law;
- The mediator needs to make the admission to respond to a claim of misconduct; or
- The admission is required for the purposes of enforcing a settlement agreement.
By contrast, the majority of the Rules do not specifically prohibit admission of any of the matters referenced above (under the first paragraph of this subheading). The Rules do still prohibit admission of any matters discussed during the mediation.
The ICC Mediation Rules specifically notes that the fact that the mediation is taking place is not confidential.
Only the LCIA Mediation Rules indicates that any statements made for the purposes of the mediation shall be confidential, including any information produced for or arising in relation to the mediation. These particular rules may be construed more generally, and may, as a result, prohibit admission of details relating to invitations to mediate, and other discussions pre-mediation, just as the Act does.
Once the proceedings to which the mediation relates to are resolved, for the purposes of determining costs, the Act does allow for admissions regarding the following:
- The conduct of a party at the mediation; or
- The conduct of the mediator.
The Rules make no such reference to admissions for the purposes of determining costs.
Mediator Cannot Act as Arbitrator
The Act prohibits the mediator of a particular dispute from also acting as an arbitrator in the same dispute, unless the parties agree otherwise. The ICC Mediation Rules and WIPO Mediation Rules have similar provisions, whereas the ADRIC National Mediation Rules and LCIA Mediation Rules have no such prohibition.
Enforcement of Settlement Terms
Whereas the Rules have general provisions relating to enforcement of any settlement agreement entered into at a mediation, the Act specifically addresses enforcement. It notes that a party can enforce a settlement agreement by application to a judge of the Superior Court of Justice to either obtain judgment on the agreement or obtain an order authorizing registration of the agreement with the court.
The enforcement provisions of the Act also apply with any necessary modification to mediator fees where a settlement agreement specifically contains an undertaking by a party, or the parties, to pay the mediator’s fees and sets out the amount of the fees.
The Act notes that no judgment or order will be granted on settlement agreements which:
- Are not signed by a party to the agreement or otherwise were not consented to by a party;
- Are obtained via fraud; or
- Do not accurately reflect the agreement between the parties.
The Rules do not have similar enforcement provisions, other than provisions which reference enforcement of the terms of settlement in passing.
(See also blogs Part I, Part II, and Part III for a fuller picture of the provisions of the Act)
At Gilbertson Davis LLP, our lawyers and mediators can represent you, your business, company, partnership or corporation in your dispute, whether you require a lawyer to represent you or a mediator to offer his/her services in a mediation. Gilbertson Davis LLP lawyers have experience in proceedings involving Commercial Litigation, Civil Litigation, Business Torts, Business Litigation, Arbitration and Mediation matters and can assist you in resolving your legal issues in a timely and cost-effective manner. Our mission is to provide creative, sensible, cost-effective, long-term resolutions to clients. Please contact Gilbertson Davis LLP to schedule a consultation.
Brief informational summaries about insurance litigation, commercial litigation and family law litigation matters in the courts of Ontario and Canada are periodically published on our website. Please note that our website content is for informational purposes only, and should not be construed or relied upon to provide legal advice. If you require legal advice, please request an initial consultation with Gilbertson Davis LLP using the Request Consultation Form on this webpage or by contacting our Intake Coordinator on (416) 979-2020, ext. 223 (both subject to the Terms of Use described on our Contact page).
Comments & Opinions by Gilbertson Davis LLP lawyers and staff on its Blog, or in media interviews, appearances or publications, or in professional publications, are personal to them, and do not necessarily represent the opinions of the Firm or anyone at the Firm other than the individual expressing those comments or opinions.
About the Author
