Tue 21 Jan 2020

Regulating Mediation and Arbitration in the Public Interest

Posted by Lori.Charvat

Regulation is a hot topic these days. The heat began when, in March 2019, Adrian Dix, British Columbia’s Minister of Health, commissioned an investigation into the governance and operations of the College of Dental Surgeons of British Columbia. Minister Dix hired Harry Cayton, who was instrumental in transforming professional regulation in the United Kingdom, and has been consulting to several Canadian regulators over the last decade. In my circles, the Cayton Report repeatedly surfaces in conversations, and the conversations always extend beyond the dentists. As it should: the Cayton Report offers a blueprint for what regulation could and should look like in British Columbia - not just for health care professionals, but also for other professionals who serve the public. 

Naturally, from my seat as the current Chair of Mediate BC, I have been thinking a lot about whether and how mediation and arbitration should be regulated. Having served on the boards and committees of three professional regulators in our Province, I see the value of regulation in the public interest, especially when protecting the vulnerable. I also believe in what Cayton calls “right touch regulation,” that regulation should be in proportion to the potential risks to the client or the patient. So, given the risks that mediation and arbitration clients face, should our profession be regulated? I think so. 

What would regulation of mediation and arbitration look like? The Cayton Report offers standards of Good Regulation. Essentially, these standards fall into three primary functions of regulation - 1) establishing registration (admission) requirements, such as training, skills and experience; 2) setting standards of competent and ethical practice; and 3) addressing complaints and discipline against registrants. 

Cayton also lays out standards for Good Governance, which are the necessary elements the regulator must have in place to regulate the profession. Central to good governance is that the regulator must be unequivocally focused on the interests of the public it serves. A professional regulator cannot simultaneously advocate for its “members” and protect the interests of clients and the public. That the College of Dental Surgeons, as regulators, were not fully focused on patient safety, required Minister Dix to bring in Mr. Cayton to review it. Teachers and real estate agents in British Columbia also forfeited their right to self-regulate in the face of conflicted interests. 

Mediation and arbitration are not currently regulated professions. But many closely related professions are, such as lawyers, social workers, and psychologists - professions that often serve vulnerable clients. With the growth of access to justice projects across the province, we mediators and arbitrators serve more and more vulnerable clients. With this in mind, the Board of Directors of Mediate BC believes it is time that we, as a community of dispute resolution professionals, engage in dialogue about the benefits and risks of regulating mediation and arbitration, from the perspective of various stakeholders - the public, the profession, and the justice system. What would regulation look like? What governance mechanisms would the regulator need to put into place to be effective and efficient? 

If regulation of our profession is to unfold, Mediate BC is well positioned to assume the regulator role. We serve in the public interest, not in the interest of those professionals whom we admit onto our rosters. We do not have “members” but rather “roster mediators.” We set standards of competent and ethical practice. And, we have a clear and accessible complaint process through which the public client can assert their interests against mediators on our rosters. While we could not open shop as a regulator tomorrow, we have the essentials in place to build upon. Is this a direction that we should be moving? 

I welcome your thoughts on this hot topic of regulation. Diversity of ideas makes for the best decision-making. We welcome written comments on this post and by email. We are also inviting roster mediators and others interested in the topic to join us in one of two online town halls to share your thoughts. 

Join us on Zoom for:

Feel free to join up to 10 minutes early if you'd like test your connection, or email walter.brynjolfson@mediatebc.com for more information on Zoom.

We hope you will join us in this important discussion.
Thank you,

 
Lori Charvat, J.D., LL.M.
Chair, Mediate BC Society
board@mediatebc.com
Mediate BC Board of Directors