Peter R. Braund, B.A. (Hons.), LL.B., LL.M.
Background and Purposes
Ontario’s new Commercial Mediation Act, 2010 came into force on October 25, 2010 as part of the province’s Open for Business Act, 2010.
The CMA makes Ontario the second Canadian jurisdiction, after Nova Scotia, to adopt legislation based on the UNCITRAL (the United Nations Commission on International Trade Law Model Law on International Commercial Conciliation (2002)). Similar legislation has been enacted in a number of U.S. states.
The primary purposes of the CMA are to:
– provide more certainty in the mediation process – for the appointment of mediators; the conduct of mediations; and the confidentiality of the process
– establish rights and obligations of mediators
– facilitate the enforcement of mediated settlement agreements
In interpreting the CMA, consideration must be given to its international origin, the “need to promote uniformity in its application, and the observance of good faith”.
The CMA applies to commercial disputes commenced after October 25, 2010. Commercial disputes are defined as “a dispute between parties relating to matters of a commercial nature whether contractual or not” and expressly include, inter alia, trade transactions for the supply or exchange of goods or services, leasing, construction of works, engineering, investment, financing, insurance and joint ventures. The CMA binds Her Majesty in right of Ontario.
The CMA does not apply to mediations relating to collective agreements nor to mediations involving family law disputes or for which procedures are prescribed in the Rules of Civil Procedure under the Courts of Justice Act – ie, mandatory mediations.
The CMA can be contracted out of by the parties, except those provisions referred to above regarding fair procedure and the recognition of international principles.
The Mediation Process
The mediation commences when the parties to a commercial dispute agree to submit the dispute to mediation. The parties may appoint their own mediator. The parties may agree on the manner in which the mediation is to be conducted, failing which agreement the mediator is to conduct the mediation in the manner he/she considers appropriate. The mediator may communicate with the parties separately or together; may make settlement proposals at any stage; and is to maintain fair treatment of the parties throughout.
The mediator may disclose to any party information that he/she receives from another party, unless that other party expressly asks the mediator not to do so.
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:
– all parties agree to the disclosure
– the disclosure is required by law
– the disclosure is required to enforce a settlement agreement
– the disclosure is required for a mediator to respond to a claim of misconduct
– the disclosure is required to protect the health or safety of any person.
Subject to certain exceptions some of which are noted immediately above, no evidence or information in any form relating to the mediation is discoverable or admissible in evidence in arbitral, judicial or administrative proceedings.
Mediator’s Rights and Obligations
In addition to certain obligations of a mediator discussed above, the CMA provides that a mediator has a positive duty to “make sufficient enquiries” to determine if he or she has a current or potential conflict of interest or there are circumstances giving rise to a reasonable apprehension of bias and if so, to disclose same.
Mediators cannot act as both mediators and arbitrators in the same or related matter unless all parties to the mediation agree otherwise.
The mediator may move to court if his/her fees and expenses are not paid.
Enforcement of Mediated Settlement Agreements
Minutes of Settlement are binding on the parties to the mediation who sign them and if a party fails to comply, another party can move to court to enforce the settlement agreement. The party may apply to either a Judge of Superior Court of Justice for judgment in accordance with the terms of settlement, or to the Registrar to obtain an order authorizing the registration of the signed settlement agreement with the court. In the latter event the Registrar will only be able to refuse making an order if a party did not sign the settlement agreement; it was obtained by fraud; the parties did not consent to the terms; or the agreement does not accurately reflect the terms agreed to by the parties.
Once the order is obtained authorizing registration of the settlement agreement, it has the same force and effect as if it were a judgment obtained and entered in the Superior Court of Justice.
The CMA provides for certainty in the mediation process; clarifies rights and obligations of mediators and parties; and permits relatively quick and easy enforcement of mediated settlement agreements. It clearly establishes mediation as an effective alternative to litigation in Ontario.