Underneath the Golden Boy - Robson Hall Faculty of Law

346 Underneath the Golden Boy
In fact, failure is the exception. […] with the assistance of a skillful mediator, parties to a
great variety of business disputes have succeeded in bridging wide gaps in their positions
and often in developing creative, mutually advantageous business solutions.
However, CPR clearly states that the principal pre-condition to mediation is
that the parties share a genuine desire to resolve the dispute promptly in an
equitable manner. 174 Mediation will fail if the parties are not willing to partake in
the process and resolve the dispute. Consequently, forcing parties to mediate
through a mandatory mediation program may very well be a waste of time and
money in such instances. A mandatory mediation program should therefore not
be adopted in Manitoba.
A mandatory arbitration scheme lacks many of the disadvantages of
mandatory mediation. Since arbitration is a binding method of solving disputes,
it means that, once agreed upon, it will resolve the dispute between the parties,
and absent some specific circumstance, the parties will have no further recourse
or appeal rights after a decision is reached. 175 However, even many supporters of
ADR fear the ramifications of mandatory arbitration. Mr. Jean H. Gagnon, Vice-
President of the Alternative Dispute Resolution Section of the Quebec Division
of the Canadian Bar Association and member of the Mediation and ADR
Committee of the Quebec Bar, argues that it is too delicate and dangerous to, by
law, force the parties to a franchise dispute to resort to arbitration or any other
ADR process. 176
When considering arbitration as a mandatory means of conflict resolution, it
is necessary to realize that a dispute resolved through arbitration can be as costly
in terms of fees and costs as a case going before a court. Furthermore, if one of
the parties is litigious in nature or is drawn to arbitration against its will,
arbitration can also be a slow process which may take months and, sometimes,
years before a final decision is reached and enforced. 177 Therefore, a mandatory
arbitration scheme would also fail to provide a desired alternative method to
litigation.
In conclusion, Manitoba should adopt neither mandatory mediation nor
mandatory arbitration and should only introduce provisions dealing with a
franchisor’s disclosure requirements with regard to what ADR means it will
adopt when a dispute arises.
174
Ibid.
175
Daniel F. So, supra note 69 at 261
176
Jean H. Gagnon, supra note 150 at 13
177
Jean H. Gagnon, “There Must be a Better Way to Resolve Franchise Disputes!” (2006), online:
Jean H. Gagnon Consulting Services
at 2.