Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1511709
20 www.lexpert.ca Feature "THE RIGHT SELECTION OF COUNSEL AND MEDIATORS PLAY A BIG PART IN THE SUCCESS OF A MID-PROJECT MEDIATION" Andrew Parley LENCZNER SLAGHT LLP the most powerful dispute resolution mech- anism available in the market is mediation." He says that is partly because mediation is "infinitely flexible," and parties can choose the mediator and cra a bespoke process appropriate and proportionate to a simple or complex dispute. Parley says that the most effective medi- ations are tailored to suit the nature of the dispute instead of booking a mediator and using boilerplate materials and standard processes used in the past. "at, I think, leads to some really interesting results and provides for creative solutions to problems that otherwise seem intractable." Both Reynolds and Parley note that medi- ation or another form of mid-project dispute resolution prevents festering conflicts from piling up costs and poisoning the project. ough it will be in one party's favour, both parties benefit from the result since the issue will not compound over time and become a potentially project-threatening dispute, says Parley. "Better to nip these things in the bud early when they're smaller and manageable." "It actually resuscitates the DNA of coop- eration between the project participants," says Reynolds, "and prevents the relation- ships from being poisoned by the running existence of a major dispute, which … has a tendency to grow and metastasize." In October 2019, Ontario amended the Construction Act to introduce the Ontario Dispute Adjudication for Construction Contracts (ODACC), the authorized nominating authority responsible for administering adjudications under the Act and training and qualifying adjudicators. Parley says ODACC has had less uptake than had been anticipated. According to ODACC's 2022 annual report, only 121 adjudications commenced, and 67 decisions were rendered in the prov- ince that year. While 34 remained open at the end of 2022, another 24 were terminated. "It's partly because the players within the construction industry are not convinced that the statutory adjudication process provided by the Construction Act is helpful or will allow them to resolve their mid-project disputes in real time," says Parley. Reynolds says a dispute resolution board (DRB) is another popular option for mid-project ADR. A DRB is a board of inde- pendent professionals formed at the begin- ning of a construction project who monitor the process, help avoid disputes, and assist in their resolution. He says that governmental owners are increasingly using DRBs. Lawyers say one problem with the increasing popularity of ADR in the construction – or any other – space is that case law does not develop because the dispute resolutions are confidential. Ferris says this creates an "expertise and jurisprudence vacuum" in the courts. With many large construction disputes arbitrated in Canada without seeing the light of day, arbitrators and judges deciding on these disputes lack the benefit of deci- sions rendered by others, says Parley. He says it makes it more difficult for the law to develop and for parties to recognize the rules, the exceptions to rules, and the frame- works to apply to certain disputes. "I see that as a problem, and as one that is significant… Unfortunately, we're le to rely on the same few cases again and again. Or, to reach into American or English case law to try to find precedents that fit the particular circumstances of the case." Parley says that the construction law bar would benefit if arbitrations were public and other arbitrations could rely on them. He understands why parties want their arbitrations confidential and adds that they are entitled to privacy. "But on the macro level, when each party decides individually to do it in a private arbitration, it does lead to this larger issue. I think it is a problem for the construction law bar in Canada."