The family law rules that govern all family law matters before the courts in Ontario were the product of lengthy discussion, consultation, and debate among family lawyers, judges, and family law academics.
They are straightforward, concise, and, in most cases, an improvement over the earlier procedures in family law governed by the Rules of Civil Procedure.
Rule 17 of the family law rules addresses the many conferences that are now part of the family law process. Case conferences, settlement conferences, and trial-management conferences are governed by this rule.
Specific direction is given to judges, lawyers, and parties as to what can and cannot happen at a particular conference.
Briefs filed on case conferences and on settlement conferences are excluded from the continuing (court) record and are to be returned to the parties at the end of the conference so as not to taint the record for the judge who is later to adjudicate.
There are restrictions on what may be disclosed to any other judge after the settlement conference. Rule 17(24) is an unequivocal prohibition excluding the judge who conducts the settlement conference from later hearing the issue and adjudicating.
Fast-forward now to this era of expediency and speeding up the process and we now have a parallel private court system where all of the above rules are jettisoned (see
“Med-arb splits ADR community,” Law Times, Dec. 5, 2011).
We have an unregulated profession of mediators and arbitrators who have mostly decided that the rules should apply only to those foolish and/or poor enough to engage the public court system.
“Yes, I as mediator can listen to your innermost thoughts and motives about the case, can receive the minute details of your strategy and evidence all in the quite worthy quest for settlement, and then somehow magically disabuse myself of all of this when the arbitrator hat goes on,” someone might say. Sorry, I don’t buy it.
I admit to engaging in this med-arb process on rare occasion but never have I been satisfied with it. Sleepless nights follow any breakdown in the mediation process when I am locked into both with the same person.
More often than not, I beg off. If I am going to mediate and arbitrate, I seek agreement that the roles will be filled by two separate individuals.
Foolishly, I still believe in the rules of evidence, in due process, and in adjudication by a truly independent individual. I know my views are unpopular but they seem right to me.
I wish we had a unified family court, but even in its absence I am consistently more satisfied with the trial process in the public courts than in private arbitrations. Family law mediators and arbitrators should be separately regulated.
Those of us in the profession should consider the appropriateness of family law arbitrators continuing to practise family law. Consider full-contact family law litigation with an opponent who the following month will be the adjudicator in a family law dispute for which you are then counsel for one of the parties.
Family law judges are wisely removed from such concerns. Rule 17 should be mandatory and family law disputes, even those in the private court system, should be adjudicated only on a principled basis with an arbitrator truly independent of the dispute.
I accept that we must move forward and better address the needs of family law disputants but I am not convinced that med-arb serves the public any better.
If we are to adopt this private court system for family law as it appears most of the profession has, let’s have it better regulated and more firmly grounded in the principles of due process and independence.
Gary Joseph,
MacDonald & Partners LLP,
Toronto
