Under our standard mediation procedure, if the case does not settle through mediation, the Tribunal Member who conducted the mediation will not be the Tribunal Member assigned for the formal Tribunal hearing and decision-making on the case (“adjudication”).
This is because, in the course of trying to assist parties to resolve a complaint through mediation, the Member may hear privileged or confidential information about the weaknesses of each party or person’s case. At mediation, parties commonly share this kind of information with the Member in the course of negotiations. At adjudication, however, the parties have the right to keep all privileged information confidential; it cannot be used as evidence, and it should not be shared with the Member conducting the hearing.
The MED-ADJ procedure works differently. Under this procedure, if the case does not settle through mediation, the Member who facilitated the mediation also conducts the hearing and adjudication of the matter. He or she will proceed to manage the case through the pre-hearing stage and act as the adjudicator, hearing evidence, issuing rulings and ultimately deciding if the complaint is founded.
Because of the concerns detailed above regarding the disclosure of privileged and confidential information, the Tribunal requires special consent from the parties to participate in MED-ADJ, separate and apart from the initial consent required to participate in our standard mediation procedure. Therefore, while dependant on the circumstances of each case, MED-ADJ is usually only conducted with parties represented by a lawyer (counsel).
Provided special consent is obtained, MED-ADJ can result in a significantly more expeditious adjudication. Through the mediation process, a Member acquires a strong familiarity with the case. This can ease the transition to case-management, and may accelerate the Member’s understanding of the evidence and arguments presented during adjudication. Should the parties agree, the Member may also revert back into mediation with the parties, before or during the hearing.
Parties interested in utilizing MED-ADJ should inform the mediator assigned to their case at the conclusion of the mediation or soon thereafter.