The ADR Subcommittee is composed of Firoz Dossa, Ted Hanman, Judy Reynier, Gwen Taylor and Suzanne Wiltshire. This report is a result of subcommittee meetings and discussions with the whole committee.
1. Comment on Current Negotiation Process Prior to Filing of Form A
The steps in the acquisition process prior to the filing of a Form A were reviewed. Points of interest brought out included:
- Increasing use of interest based negotiation. Need to address emotional climate.
- Whether negotiation leads to consensual agreement, s. 3 agreement or s. 6 expropriation notice, basic principles are:
- market value is test
- Owner receives same amount regardless
- It is important that an Owner understands the limitations the authority is under and that unrealistic expectations be reduced.
- In a partial taking or where business loss is involved an Owner may wish to delay settlement to assess the impact of the project after its completion and this is often the reason for a s. 3 agreement.
- Bringing in a third party to negotiate often leads to success - fresh focus/approach and gives file a high priority.
2. New Process Design
2.1 Types of Cases after Form A Filed:
There are a number of different types of cases:
- Claim filed to protect interests, solution expected. May not need intervention.
- Claim filed, but no subsequent activity. Authority has already paid and has no interest in pushing so case may sit unless there is intervention.
- Case needs maturation/aging. Timing of intervention needs consideration.
- Issues clear, parties have stagnated. Intervention needed to resolve.
- Case unlikely to settle because of complexity, previously undecided point of law, sticky issues, etc. Intervention may or may not resolve.
2.2 Function of Mediation
Even where overall resolution would appear unlikely, mediation process could:
- define issues/take issues off table
- clarify positions
- lead to agreement on facts
- provide for reality testing
- clarify thinking/better understanding of case/improved risk assessment
- resolve some issues or even all
- define structure for hearing
Involvement of the Owner early in the process seen as helpful to resolution. Need to ensure Owner at table.
2.3 Incentives to Mediate
The following are not mutually exclusive:
- From the authority's perspective incentives were seen to be closure, certainty of result, assessment of best and worst alternatives to a negotiated solution, and where unresolved issues, better ability to estimate costs for budgeting/allocation purposes.
- From the owner's perspective incentives were seen to be earlier resolution, certainty of result, collaborative result, ownership of result, decreased cost, ability to address emotional side/hidden interests/reality testing
2.4 Cautions and Concerns
Concerns included:
- perception that parties are expected to move, leading to perception that claimants get more through mediation
- additional step meaning possible delay, increase in costs
- parties may not engage in meaningful mediation
- confidentiality issues
- issues not amenable to negotiation
Possible ways to address concerns included:
- ensure mediation is well controlled by the service provider/neutral
- require actual participation / formal preparation in advance of mediation to ensure parties understand case
- include owner in process; the clients must be present
2.5 Confidentiality
Confidentiality is usual in mediation and is invariably one of the terms included in an agreement to mediate along with the understanding that the mediator cannot be called as a witness. It encourages full disclosure/exploration of the issues/concerns of the parties and promotes resolution. From the authority's perspective, it was noted that in order to have maximum flexibility non-disclosure was desirable.
The committee acknowledged that expropriating authorities could be subject to disclosure through Freedom of Information requests. It was noted that negotiated settlements were likely to give rise to similar concerns but this did not preclude the inclusion of a confidentiality clause in settlement agreements. Standard wording would provide an exception in the event of an order for disclosure by a court of competent jurisdiction.
From the authority's perspective it was noted that in negotiated settlements the details of the deal will get out if an owner wants them to even with a confidentiality provision and the solution is to make settlements consistent.
It was concluded that there was no bar to including an appropriately worded confidentiality clause in the agreement to mediate. The mediator might wish to note the possibility of disclosure under FOI.
2.6 Mandatory?
Mandatory mediation in all cases was considered to be inappropriate. It was not seen to be the Board's role to save an owner from his own inactivity. Since some cases might fall by the wayside, mandatory mediation of all cases could have a negative financial consequence for authorities.
The consensus was that mediation should be mandatory at the option of either party or at the direction of the Board. Even where one party needed to be prodded or was reluctant, this would bring the parties together for discussion and result at a minimum in better issue definition, etc. Requirement for formal preparation would avoid time wasting and progress the case.
2.7 Model
Noting the concerns raised and discussed the consensus was that the model that would serve the parties best is interest based mediation at the option of either party or at the direction of the Board.
The mediation process is linked to case management and the timing of mediation could be canvassed in the case management.
Reality checking and caucusing were seen as useful tools in the mediation model.
To ensure parties would be prepared, parties would be required to deliver mediation briefs prior to mediation. This would assist resolution by ensuring parties had focused on the case.
The presence of Owners was also seen as enhancing opportunities for resolution.
Confidentiality/neutrality provisions would be incorporated into the agreement to mediate.
The consensus was that the mediator could be a Board member or other person appointed by the Chair to conduct the mediation. This would allow for flexibility.
Mediation involves disclosures/concessions and the mediator is injected into the process to apply their skills to resolution. In the event the case went on to a hearing it was felt it would not be appropriate for the mediator to be a member of the panel hearing the case. The same considerations were not considered applicable to someone conducting case management. However, given the sometimes adversarial nature of case management and the use of orders in case management it was felt that the mediator and case manager should be different persons.
Other models were considered. Concern was expressed with the use of neutral evaluation or expert evaluation unless both parties agreed to use such a model. The use of other models by mutual agreement would not be precluded and could be arranged in the course of case management.
