September 10 – When Should Court Interfere With Mediation-Arbitration

“I find the arguments set out by the critics of the interventionist approach compelling. The intervention of the Ontario Court of Justice in the face of private mediation/arbitration agreements should be limited to its statutory jurisdiction under sections 6 and 7 of the Act. The court should be loathe to intervene in the mediation/arbitration process where that process has begun and there is a mechanism in place to make decisions about a child’s best interests in a timely manner. It is difficult to imagine a circumstance where it will be appropriate for a judge of the Ontario Court of Justice to substitute its own decision for an Award that has just been made by an arbitrator, as requested by the father. Here, the parties reached an agreement that the best interests of the child would be determined though the mediation/arbitration process – an agreement that they bargained in good faith. If the father feels that the process or the Award is flawed, he has a statutory pathway to follow for court intervention. He has not, for the most part, followed that pathway. The parties should be held to their bargain.”

McAlister v. Gallant, 2012 ONCJ 565 (CanLII) at 68