Labor & Employment Law

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."  Abraham Lincoln's Notes for a Law Lecture

Mediation can be a cost effective way of dealing and, ultimately, resolving many employment disputes.  Whether claims brought to the courts or under some statute (e.g. the Human Rights Code, Employment Standards Act or Labour Relations Act), mediation allows the parties to avoid the harsh "win/lose" that results whenever a third party adjudicator "has the pen" and will decide who was right and who was wrong. 

But to be truly effective, mediation must be entirely confidential and there must be safeguards built in to protect the parties and the mediator in order to allow an open and honest discussion about the strengths and (gasp) weaknesses of the case. 

The parties will be required to sign, in most cases, some form of confidentiality agreement. ForPublish example, under the Ontario Human Rights Tribunal's Rules of Procedure, the parties to a mediation under the Code "must sign a confidentiality before the mediation commences".  Furthermore,

"All matters disclosed during mediation are confidential and may not be raised before the Tribunal or in other proceedings, except with the permission of the person who gave the information."

Again, the parties must not feel that they have to hold back in mediation because what they say "can and will be used against them" if the case doesn't settle.  Fair enough, but what about the mediator?

The issue was recently considered in a case before the Ontario Human Rights Tribunal.  In this case, the applicant filed a human rights complaint as a result of comments allegedly made by a mediator in the context of a mediation conducted in the context of motor vehicle accident lawsuit.  The applicant alleged that the mediator made certain comments during the mediation.

The issue before the Tribunal was whether the doctrine of judicial immunity applied to the Application and to the mediator. 

In Hazel v. Ainsworth Engineered, the Tribunal determined that the doctrine of judicial immunity applied to protect arbitrators and mediators from human rights claims arising out of the exercise of their decision-making and dispute resolution functions.  The Tribunal noted:

With respect to mediators, I find that immunity extends to protect the mediator from claims arising from the exercise of his or her functions in assisting the parties in reaching a resolution of the dispute, and in facilitating the settlement discussions. .....

The touchstone for the application of immunity is to ensure independence of the decision-making and dispute resolution process.  Immunity applies to those functions that can legitimately be said to be integral to that process, and to the effective exercise of the duties of the arbitrator or mediator. 

After referring to the mediation agreement, the Tribunal concluded that the allegations against the mediator arose "out of the exercise of his functions as mediator in facilitating settlement of civil and/or statutory claims," and, as such, "I find that he is covered by immunity".  In the end the the application was dismissed as against the mediator.