Overcoming Bias: Mediation-Arbitration in Canadian Civil Litigation

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