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The Court of King’s Bench now suffers from a number of backlogs and filing and procedural complexities or mysteries. Yet arbitration can sometimes have drawbacks. A three-member arbitration panel can be expensive and introduce other complications. Some clients are reluctant to leave the court system entirely. Yet clients rarely want a long frustrating process, waiting years to get an answer.

So what can a lawyer do? Settling by compromise is attractive. But often one or both of the parties does not want to give up much, or even has exaggerated ideas about the whole dispute.

One route to follow is negotiation which is fortified by mediation by an independent, experienced person. Finding a good mediator should not be too difficult, and would not be very expensive. But assessing the worth of mediation, and convincing both clients of that worth, can be more difficult. Often at least one of the parties thinks that the big aim is to get approximately equal concessions by both sides, or otherwise get a settlement which is “fair”. But often the real issue is different. It is whether almost any settlement is better than protracted expensive litigation.

The second of these blogs, almost 9 years ago, explained some surprising and little-known facts about mediation and settlement. That blog is dated December 15 2016 and entitled “Mediation”. It is the second blog near the bottom of the list of blogs here. See also another blog about mediation and settlement, dated June 15 2017.

Advocacy for a mediation is a topic not often discussed. On it, see chapter 11 of my textbook, Systematic Advocacy: Planning to Win (Juriliber 2017).

Judges sometimes suggest that parties make use of the “referee” procedure in the Rules of Court. A referee could be some court officer, but usually is a private person whom the two parties agree to. The court then (by consent order) gives the referee a question to try. For example, the referee might be an accounting expert asked to assess the damages or the earnings in a lawsuit. Or an engineer who will decide some difficult factual question involving technical matters. Once the referee makes a decision, a court application to confirm or reject that decision is needed (if the parties do not agree). But the standard of review is much like that on an appeal, and it takes clear error for a judge not to confirm the referee’s decision. Ontario used to make heavy use of such references (which were then heard by Masters).

Once the parties select a referee, the hearing can occur as soon as the appointment books of the referee, lawyers, and witnesses, permit.

On referees, see Rules 6.44 to 6.46, and the commentary on them in the Stevenson & Côté Handbook.

– Hon. J.E. Côté

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