These standards were produced by a working group convened by Mediate BC in consultation with the British Columbia Arbitration and Mediation Institute. The group consisted of both experienced mediators and arbitrators some of whom act as med-arbitrators in med-arb proceedings. This document reflects their experience, their review of published materials from various jurisdictions, and the feedback of their peers.
It is recognized that while not all mediators or arbitrators are prepared to recommend or participate in the med-arb process, it remains an option for those who wish to consider it. It is also recognized that these standards may not be appropriate in the context of labour relation matters
2 The rules of natural justice include a requirement that an arbitrator be free from bias, or apparent bias, and that the proceeding be conducted fairly. The obligation to be fair includes ensuring that all parties are aware of the case to be met, and have the opportunity to be heard.
3 A mediation conducted by one person followed by an arbitration conducted by another may be considered to be a med-arb, but does not carry the same degree of risk or compromise compared to the use of a single med-arbitrator.
4 The Med-Arb Agreement should also recognize that the parties may, by consent, supplement or amend those issues during the med-arb.
5 The Med-Arb Agreement must be specific as to what information from the mediation process, if any, forms part of the evidence in arbitration process.
6 At a minimum, informed consent will be evidenced by the Med-Arb Agreement signed by the parties. It may also be reflected in Certificates of Independent Legal Advice, if obtained, a separate document drafted by the medarbitrator, if required, or in discussions between the med-arbitrator and the parties. It is up to the med-arbitrator to decide how to best manage this aspect of his or her practice.
7 For example, and without limiting the generality of the foregoing, a med-arbitrator must not conduct med-arbs involving family law disputes, family businesses, family inheritance and estates, responsibility for care of elderly parents, or other similar disputes unless qualified to do so. Special skills may also be required for multi-party medarbs or med-arbs involving complex subject matter.
8 Before making any evaluative comments, the med-arbitrator should consider whether they should obtain the consent of the party or parties to whom the comments are to be directed.
9 A med-arbitrator should also consider these practices in med-arbs involving family businesses, family inheritance and estates, responsibility for care of elderly parents, or other similar disputes.
10 As defined in the Family Law Act.
11 Good cause may include real or apparent bias on the part of the med-arbitrator; a conflict of interest that is not waived by the parties, an inability of a party to participate effectively, or safety concerns.
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Mediate BC Standards of Conduct for Med-Arbitrators
Revised: February, 2017