UTGB Vol 5.pdf - Robson Hall Faculty of Law

in the regulations, the ULCC created mediation specific regulation. 165 These
Regulations establish general rules for appointment of a mediator and for
mediation as well as specific rules for pre litigation mediation and post--litigation
mediation. Some of the topics covered include:
• Pre.-mediation conferences;
• Exchange of information;
• Costs of mediation;
• Timing of mediation;
• Time limits on mediation; and
• Defaults.
These Regulations apply to the mediation of a dispute that is initiated by notice
to mediate delivered before or after a legal proceeding or arbitration in respect
of the dispute has been commenced. In essence the proposed mediation process
is mandatory. It is elective on the part of either party that wishes to mediate, so
long as the parties have attempted to resolve the dispute. Once the election to
mediate has been made by one party, it becomes mandatory on the other. 166
It is clear that the ULCC has created the most complete provisions with regard
to mediation. If a province were to adopt the UFA's Mediation Regulations, all
parties to a franchise would know what to expect if mediation is chosen as a
dispute resolution method. It is important to note, however, that the UFA
regulations only apply to mediation. This is key because, although mediation
may be quite effective in the context of franchising, the parties must share a
genuine desire to resolve the dispute promptly in ·an equitable manner. 167
Otherwise, any attempts at mediation will be futile.
2. What Should Manitoba Do
The first question under this heading is whether Manitoba should address the
prospect of mediation or ADR in its franchise legislation. An ADR provision
would require a franchisor to disclose to the franchisee if there are any ADR
methods that will be employed to resolve a dispute and, if so, to provide further
details. Since it might be important for a prospective franchisee to be properly
informed of the ways by which the franchisor resolves its agreements and
165
Uniform Law Conference of Canada, Regulation Made under the Uniform Franchises Act
Mediation, online: Selected Uniform Statutes . -
166
167
Larry Weinberg & Peter Henein, "Annual Franchise Law: Legislative Update,n (Paper
presented to the .5h Annual Franchise Law Conference, 2005) [OBA Continuing Legal
Education: Toronto, 2005] at 6; online: Publications by Cassels Brock Lawyers - Lawrence
M. Weinberg at 7.
CPR, supra note 152 at 2.