Underneath the Golden Boy - Robson Hall Faculty of Law

Response to Consultation Paper on Franchise Law 345
In contrast, a mediation provision must cover elements such as the matters
accepted for mediation, that mediation is to proceed prior to the matter being
brought before a court, other tribunal or arbitrator, the mechanics for appointing
the mediator, place of mediation, special experience factors for the mediator,
confidentiality, costs and expenses of mediation, inability to resolve the matter,
and procedures for mediation. 170 Manitoba’s provision should still adopt the
open-ended requirement that a general description be provided, while also
enforcing a non-exhaustive list of requirements, to encourage a franchisor to
disclose certain details that the franchisee should know and are not required by
the provision.
Overall, Manitoba should incorporate dispute resolution provisions that
require franchisors to disclose what method of ADR they will employ in case of a
dispute, together with two lists of what must be disclosed in the case where
mediation or arbitration are the ADR methods of choice.
3. Should Manitoba Adopt a Mandatory ADR Process
While primarily a voluntary process, the use of ADR can be mandatory in
certain instances. As a result, even parties that want to litigate, who do not wish
to mediate, or arbitrate a dispute, may be required by law to use alternative
dispute resolution methods prior to having their cases heard in a court of law. 171
To date, two Canadian provinces,
British Columbia and Ontario, have introduced some form of mandatory
pre-trial mediation into the civil court process, meaning that mediation is or can
be required after an action has been commenced, but before it reaches trial. 172
Adopting a mandatory mediation process for franchise disputes would have
both positive and negative aspects. One of the advantages of mediation is that it
is less adversarial than arbitration, and therefore, less disruptive of business
relationships. Furthermore, since there are other options available if mediation
should fail, entering into a mediation process is essentially without risk. 173 The
International Institute for Conflict Prevention and Resolution (CPR) supports
the use of mediation to resolve franchise disputes:
Franchising in a New World of Disclosure, 2003), [OBA Continuing Legal Education:
Toronto, 2003] at 26.
170
Ibid. at 25.
171
Daniel F. So, supra note 69 at 263.
172
Peter Snell and Larry Weinberg, ed., “Fundamentals of Franchising – Canada,” (Forum on
Franchising, American Bar Association, 2005) at 327.
173
CPR, supra note 148 at 2.