Legal

October 19, 2017 Published by Toronto and Area Chapter - By Marc Bhalla

Manipulating Mediation: Forced Versus Voluntary Mediation

From the Fall 2017 issue of the CCI Toronto Condovoice Magazine.

As a mediator, I am sometimes asked if, in my experience, the "success rate" of mediation differs when parties participate in the process voluntarily as compared to when they are forced to. My answer tends to surprise, as I do not see much of a difference. In fact, I increasingly see the line between mandatory and voluntary mediation being blurred as parties embrace the mediation opportunity regardless of whether or not they have to.

Mediation is about bringing together those directly involved in a conflict and empowering them to help craft their own solution. Taking a step back, the concept of forcing someone to participate in a conciliatory process does not seem to be all that conciliatory – or, at least on the surface, forcing participants to get together would not appear to set them up well to reach consensus.

I think that the reason I find the "success rate" of mandatory and voluntary mediation to be similar is because those who are not interested in participating in mediation – whether they are required to do so or not – tend to avoid the mediation table in any event. The reason for this being that the mandatory mediation provisions that apply to Ontario's condominium disputes have loopholes. Such loopholes can easily be utilized to by-pass mediation and miss out on the opportunities that it offers.

While Section 132 of the Condominium Act speaks to the types of disputes that are directed to mediation, the fact that the legislation (and Regulations in place pursuant to it as yet) stops short of setting out a process as to how mediation comes together makes it easy for those who wish to do so to avoid taking part in the process. This results in equipping anyone wishing to avoid mediating to easily frustrate the process to the point of deeming it a failure, without ever actually attempting to mediate the conflict.

Manipulating Mediator Selection

Without any guidance as to what constitutes someone being qualified to mediate a condominium dispute and with mediation itself being an unlicensed profession, someone wishing to avoid participating in mediation can easily manipulate the process by insisting only on mediators who are unaffordable or unqualified in the eyes of others involved in the dispute.

For example, a party that is well resourced could suggest that only mediators who charge $1000/hour or more are capable of mediating their dispute and refuse to even consider mediators who are affordable for another party. Conversely, a party who is unwilling to invest in the resolution of the dispute could suggest that only mediators who charge $100/hour or less are acceptable, preventing a capable mediator from being agreed upon.

Additionally, without any guidance as to what constitutes one being qualified to mediate a condominium dispute, someone who wishes to by-pass mediation can get creative with notions of conflict and use such to disqualify any mediator that another party puts forward.

For example, one could claim that a mediator proposed by another party may be biased because their lawyer had a past social media exchange with the mediator or has worked with the mediator before. In contrast, a judge is not considered to be in a conflict position if the judge heard arguments from another party's lawyer previously, and, unlike a mediator, a judge actually has the authority to bind the parties to an outcome.

Any mediator holding a designation from the ADR Institute of Canada is required to abide by a Code of Ethics and risks losing their designation if they were to get involved in a matter where the mediator could not participate impartially. Typically, a discussion with a prospective mediator about any concerns of perceived conflict will determine if there is any legitimate concern as to the mediator's ability to neutrally facilitate a mediation; however, it is often the case that accusations surrounding perceptions of conflict are not delved into and are used superficially to frustrate the mediation selection process.

The mediator's role is that of a neutral facilitator. Claims of perceived bias warrant exploration rather than automatic discarding, if participants truly want to attempt to seize the mediation opportunity. This is particularly the case when the list of potential mediators is narrow.

Many solutions are available to prevent this type of manipulation – from the creation of a roster that identifies those capable of mediating condominium disputes within a certain price range to what I refer to as a "rock, paper, scissors mechanism", a process for mediator selection applicable when parties cannot agree on a mediator (which can include each party identifying an independent representative who work together to find an appropriate mediator rather than actually leaving the determining factor to chance) – however, at the time of writing, such are not currently offered by our legislation as we lack a consistent process province-wide.

Scheduling Tactics

Particularly when many people participate in a mediation – as is often the case when a condominium corporation is directly involved in a conflict – one of the more challenging aspects of the process can be finding a date, time and location that works for everyone. Even in circumstances where there are few people participating, it is very easy for someone who does not wish to mediate to create scheduling difficulties, simply to discourage the process.

This type of manipulation can arise in many ways, ranging from preventing the scheduling of a mediation in the first place to last minute attempts to re-schedule the meeting. A degree of cooperation is necessary to schedule mediation and it is easy to prevent a mediation from proceeding by being uncooperative in that respect. In my practice, I find that when parties truly wish to participate in mediation, they are able to find a mutually agreeable time, date and location to do so.

"All I Do is Win Win Win…"

The explanations and examples set out may give rise to questions as to why, exactly, anyone would want to manipulate mediation. After all, mediation exists to provide a safe opportunity for those involved in a dispute to explore options and try to save the cost, time and stress that come with more adversarial dispute resolution approaches. On top of that, mediation offers the opportunity to consider ongoing relations that become uncomfortable very quickly when conflict appears in the condominium setting. Why would someone want to squander the process?

For some, the thought of by-passing mediation is appealing because they do not appreciate the opportunities it presents – particularly if their legal representation is more comfortable arguing in front of a judge rather than working with others to craft an outcome that is agreeable to everyone involved.

For others, the appeal of manipulation is a little more devious. When we speak of mediation and the opportunities it presents, we speak of the potential for a win-win outcome – an outcome that leaves both parties in an improved situation. However, what is becoming increasingly clear is that when you proceed to arbitration or court, you also need to aim for a winwin outcome, albeit a different type of one. You need to win twice - once with respect to your legal arguments and once again when it comes to cost recovery. Failing this, being right at law may still be a very costly endeavor.

Increasingly, a look at the path that brought parties to the courtroom is considered in the course of awarding costs. Accordingly, one would appear to be better positioned to recover their costs if they could claim having attempted a conciliatory approach, even if they did not truly embrace one.

Ultimately, if mediation "fails", being able to evidence that it was attempted can be helpful in the course of proceeding to arbitration or court. However, actually participating, in good faith, in the mediation process can do such things as narrow issues, allow for an interaction/communication plan to be negotiated, prevent the unnecessary expense that comes with game playing/posturing, allow for a better understanding of where other parties are coming from and otherwise relieve some of the stress that comes with the uncertainty of a third party imposing a solution for you.

Eat Your Veggies

Ultimately, mandatory mediation is like eating your veggies. While you might not always want to, you are encouraged to do so because it is good for you. This explains why many mediate – and eat their veggies – not because they have to, but because they want to.