I. Med-Arb

Author:Julien D. Payne - Marilyn A. Payne

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Mediation and arbitration need not be exclusive of one another. "Med-Arb" is a process that utilizes both approaches. Typically, a fixed time will be set aside for mediation, with the understanding that, if no consensus is reached, the mediator will then act as an arbitrator who will give a final and binding decision.63Knowing that the negotiations will proceed to arbitration may help parties to reach a consensus in the final stages of the mediation process.64On an application to confirm or set aside a parenting arbitral award ensuing from a med-arb agreement, a court must ensure that the process reflects the expectations of the parties as set out in their written agreement and that it is conducted not only in accordance with the terms and conditions of the agreement but also the governing legislation.65 An anomaly is created by agreements that incorporate a med-arb process in that either party is free to withdraw from the mediation process at any time but any such withdrawal triggers the mandatory arbitration process.66

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A court is not bound by a parental agreement to accept med-arb to resolve an access dispute, and a consequential arbitral award may be set aside in the exercise of the court’s parens patriae jurisdiction.67A court may also refuse to sanction med-arb clauses in minutes of settlement where it determines that to do otherwise would risk the best interests of a child.68

[63] Marchese v Marchese, [2007] OJ No 191 (CA); see also Wainwright v Wainwright, 2012 ONSC 913; McClintock v Karam, 2015 ONSC 1024.

[64] For a brief analysis of the advantages and disadvantages of med-arb, see Stephen B Goldberg, Frank EA Sander, & Nancy H Rogers, Dispute Resolution (Boston: Little, Brown, 1992) at 226-28.

[65] Marchese v Marchese, [2007] OJ No 191 (CA).

[66] Hercus v Hercus, [2001] OJ No 534 (Sup Ct) (arbitral award set aside). Compare Kohut v Kohut, 2015 ABQB 48; Marchese v Marchese, [2007] OJ No 191 (CA); McClintock v Karam, 2015 ONSC 1024; see also section 35 of the Arbitration Act, 1991, SO 1991, c 17, as amended. As to a finding of an apprehension of reasonable bias in circumstances where the parties have opted for med-arb to resolve parenting issues, see McClintock v Karam, 2015 ONSC 1024, DK Gray J.

[67] Duguay v Thompson-Duguay, [2000] OJ No 1541 (Sup Ct).

[68] Wainwright v Wainwright, 2012 ONSC 913.

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