Overcoming Bias: Mediation-Arbitration in Canadian Civil Litigation

28 Pages Posted: 1 Sep 2015

Date Written: August 30, 2015

Abstract

Mediation-Arbitration (“med-arb”) is a seldom-used ADR procedure in Canadian civil litigation. The reluctance to employ it is rooted in preconceptions about legal bias. In a Canadian justice system challenged by problems of access to justice and cost, lawyers must learn to use med-arb as a hybrid dispute resolution method that uses one neutral instead of several and removes cases from the public court docket. This imperative requires a fresh look at the nature of med-arb’s structural bias to determine the extent to which bias is a real obstacle to a just resolution.

The analysis begins with the origin of the med-arb structure in final-offer arbitration, in order to identify the justice expectations med-arb is suited to meeting. The author then brings med-arb’s structural bias within recent treatment of the general theory of impartiality in the Canadian legal system. The emergence of issue-alignment bias as a concept withstanding objective scrutiny helps one understand the nature of med-arb’s structural bias. This analysis yields the result that bias in med-arb is not inherently fatal to a just result. Rather, once one understands the suitability of med-arb to certain expectations of a just result, the structural bias becomes part of the bargain and the efficacy of the hybrid procedure becomes more evident.

Keywords: mediation arbitration, bias, civil litigation

JEL Classification: K41

Suggested Citation

Akazaki, Riichiro, Overcoming Bias: Mediation-Arbitration in Canadian Civil Litigation (August 30, 2015). Available at SSRN: https://ssrn.com/abstract=2653461 or http://dx.doi.org/10.2139/ssrn.2653461

Riichiro Akazaki (Contact Author)

Gilbertson Davis LLP ( email )

6 Adelaide Street East
Suite 800
Toronto, Ontario M5C 1H6
Canada
4169792020 (Phone)
4169791285 (Fax)

HOME PAGE: http://www.gilbertsondavis.com

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