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The Ontario Commercial Mediation Act, 2010 (Blog Part II)
This blog post (Part II) considers provisions of the Ontario Commercial Mediation Act 2010, S.O. 2010, c.16, Sch. 3 (the “Act”) not included in an earlier blog post (Part I) or the subsequent blog post (Part III), including the mediator’s authority, prohibition of disclosure between parties, confidentiality, admissibility, and the relationship to arbitration and judicial proceedings.
An earlier blog post (Part I) considers the provisions of the Act concerning the application of the 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.
A subsequent blog post (Part III) will consider the 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.
Mediator’s Authority
By subsection 7(3), the mediator may: (a) meet or communicate with the parties together, separately or in any combination; and (b) make proposals for settlement of the dispute at any stage of the mediation.
Obligation of Fair Treatment
However, by subsection 7(4), the mediator shall maintain fair treatment of the parties throughout the mediation, taking into account the circumstances of the dispute, and the parties may not opt out of subsection 7(4), and by subsection 7(5), the parties shall not modify the obligation of the mediator in subsection 7(4) nor relieve the mediator from the duty to comply with that subsection.
Disclosure – Between the Parties by Mediator
The Act sets out a clear contingent obligation in subsection 8(1) about disclosure of information between parties, stating that a mediator may disclose to a party any information relating to the mediation that the mediator receives from another party unless that other party expressly asks the mediator not to disclose the information.
Disclosure and Duty to Keep Confidential
By subsection 8(2), the Act requires that information relating to the mediation must be kept confidential by the parties, the mediator and any other persons involved in the conduct of the mediation unless, (a) all the parties agree to the disclosure and, if the information relates to the mediator, the mediator agrees to the disclosure; (b) the disclosure is required by law; (c) the disclosure is required for the purposes of carrying out or enforcing a settlement agreement; (d) the disclosure is required for a mediator to respond to a claim of misconduct; or (e) the disclosure is required to protect the health or safety of any person.
Exception
Excepted by subsection 8(3) of the Act, is the requirement to keep information relating to the mediation confidential information if (a) that is publicly available; (b) that the parties, by their conduct, do not treat as confidential; or (c) that is relevant in determining if the mediator has failed to make a disclosure required under subsection 6 (3).
Admissibility or Discoverability of Information
Subsection 9(1) provides that, subject to subsections 9(2) and 9(3), none of the following information, in any form, is discoverable or admissible in evidence in arbitral, judicial or administrative proceedings: (1.) An invitation by a party to mediate a commercial dispute, a party’s willingness or refusal to mediate the dispute, information exchanged between the parties before the mediation commences and any agreement to mediate the dispute, (2.) A document prepared solely for the purposes of the mediation, (3.) Views expressed or suggestions made by a party during the mediation concerning a possible settlement of the dispute, (4.) Statements or admissions made by a party during the mediation. (5.) Statements or proposals for settlement made by the mediator, (6.) The fact that a party indicated a willingness to accept a proposal for settlement made by the mediator, or (7.) The fact that a party or the mediator terminated the mediation.
Exceptions
However subsection 9(2) and 9(3) provide exceptions, namely by:
Subsection 9(2) provides that the the information referred to in subsection (1) may be admitted in evidence to the extent required, (a) by law; (b) for the purposes of carrying out or enforcing a settlement agreement; (c) by a mediator to respond to a claim of misconduct; or (d) if all of the parties to the mediation consent and, if the information relates to the mediator, the mediator consents.
Subsection 9(3) makes it clear that information about the conduct of a party to the mediation or the conduct of the mediator may be disclosed after the final resolution of the dispute to which the mediation relates for the purpose of determining costs of the mediation or of proceedings taken because the mediation did not succeed.
However, subsection 9(4) provides that except for the limitations set out in subsection 9(1), information created for purposes other than a mediation does not become inadmissible only because it was used in the mediation.
Subsection 9(5) provides that subsections 9(1) and 9(2) apply whether or not the arbitral, judicial or administrative proceedings relate to a dispute that is or was the subject of the mediation.
Prohibition of Subsequently Acting as Arbitrator
Section 10 of the Act states that unless all parties to a mediation otherwise agree, a mediator shall not act as both a mediator and an arbitrator or as an arbitrator after acting as the mediator with respect to: (a) the commercial dispute that is the subject of the mediation; or (b) another dispute that arises from the same contract or legal relationship or from a related contract or legal relationship between the parties.
Agreements Respecting Arbitral or Judicial Proceedings
By subsection 11 (1) of the Act, the parties may agree not to proceed with arbitral or judicial proceedings before the mediation is terminated. However subsection 11(2) provides an exception to the prohibition in subsection 11(1) so that an arbitrator or court may permit the proceedings to proceed and may make any order necessary if the arbitrator or court considers, (a) that proceedings are necessary to preserve the rights of any party; or (b) that proceedings are necessary in the interests of justice.
Mediation Not Terminated by Commencement of Arbitral or Judicial Proceedings
Subsection 11(3) provides that the commencement of any arbitral or judicial proceedings is not of itself to be regarded as a termination of the agreement to mediate the commercial dispute or as the termination of the mediation.
(see also blog posts Part I 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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