You’ll know it when you see it (Unless you don’t know what you’re looking for)

A Primer on Conflicts of Interest in FDR

Plainly stated, a “conflict of interest” is when a person faces competing professional or personal interests. The classic example is the workplace supervisor and supervised employee who are also spouses. From a legal practice perspective, a conflict of interest is widely defined as “when there is a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person.”^[1]

The issue of conflicts of interest is drilled into lawyers. There is an entire section of study within the Bar admissions process. LawPro has a booklet dedicated to the topic.^[2] Lawyers and firms must perform conflict “searches” before acting for every single client that may come through their doors.

It is accepted throughout the world in ADR that mediators and arbitrators likewise have a positive obligation to screen for conflicts of interest. That is, a failure to perform such screening can be grounds for a breach of professional duty. Moreover, a possible conflict that is discovered after the retainer has been accepted may taint and terminally end any possibility out of court dispute resolution process between the affected parties.

But you can’t screen for what you don’t know what to look for, especially in family law. So let’s walk through what we can and to create a framework for understanding what is needed to satisfy the FDR professional’s positive obligation on conflicts of interest. As you will see, the issue is expansive and multi-layered.

(a)    The “Former Client” Conflict of Interest in Family Law 

         Let’s start with the common conception of a conflict. You may have heard of the quintessential aggressive spouse who, early on in their separation, calls around the known family law lawyers in town on the pretext of consulting with each of them, but in true purpose to preclude each them from acting for the other party, to “conflict out” those lawyers. What is that?

         In a 2009 decision Tauber v Tauber^[3], a family lawyer took a seven-minute initial client call from Ms. Tauber, who was mid-divorce with her then third husband, Mr. Tauber. Both the lawyer and Ms. Tauber were driving at the time of that call, no notes were taken by the lawyer, and nothing further came from it. Five months later, the lawyer was introduced and thereafter retained by the husband. The Wife eventually raised the issue of conflict of interest and brought a motion to have the lawyer removed as the husband’s counsel based on that call.  

         The applicable law is whether the lawyer received confidential information from Ms. Tauber “attributable to a solicitor and client relationship” that is relevant to the matter between Ms. Tauber and Mr. Tauber. If yes, is there a risk that it will be used to the prejudice of Ms. Tauber? 

         Read those questions one more time. They address a very narrow part of the legal definition of a conflict of interest that is quoted at the beginning: having received confidential information from a former “client” that will then be used to prejudice the former client. Within this particular narrow issue, lawyers consider such issues as actual vs. imputed conflicts, joint retainers, transferring firms, pro bono work for one-time clients and third-party compensation. 

(b)    Expanding the concept

With the growing focus on FDR, anyone (lawyer or not) in roles of mediators, arbitrators and third-party professionals needs much wider guidance on this issue. A “conflict of interest” for a lawyer taking on a new client is not necessarily helpful in “conflict of interest” for a neutral. A more expansive definition is provided in the AFCC’s Model Standards of Practice for Family and Divorce Mediation: 

“Conflict of interest means any relationship between the mediator, any participant or the subject matter of the dispute, that compromises or appears to compromise the mediator’s impartiality.”

         Knowing the above, consider how you feel about the following: 

• the mediator making or suggesting a referral to a “trusted” business valuator who had taken the mediator out for coffee and promised reciprocity in referrals; 
• the parenting coordinator who is asked to also assume the responsibility as the professional to take the Voice of the Child; 
• a party’s therapist who proposes to mediate, or the mediator who proposes to act as a party’s therapist. 
• the (lawyer) mediator who co-chairs a legal education seminar with a lawyer for one of the parties in a mediation
• A lawyer-mediator who is concurrently opposing counsel on another matter with a lawyer for one of the parties in a mediation. What if the representation is not concurrent, but previously?

(c)    S.B. v. J.M.: A Mediator’s Conflict of Interest, in Action

In S.B. v. J.M.^[4] the moving party to a motion to change was a family law lawyer seeking to reduce the amount of support he was paying his former wife under a separation agreement. He brought an interim motion seeking to remove the wife’s lawyer and law firm from acting for her, on the basis of various claimed conflicts of interest. 

As relevant here, the wife’s current lawyer is also a family law mediator/arbitrator. A different lawyer from the firm had acted for the wife on the initial agreement and the file moved to the current lawyer for the motion to change. On receiving the file, the wife’s lawyer withdrew as the mediator from a mediation in which the former husband was representing one of the parties, writing to all parties only that there was a conflict but not specifying what it was. He then separately advised the former husband in writing that going forward no one from his firm would act as a mediator on a case he was representing, stating: 

“Believe me there is nothing personal in this…I am not prepared to disclose to third parties why we have a potential conflict, but clearly the Arbitration Act and the OAFM Guidelines would require I disclose that we are acting for your wife….”.  

[The wife’s lawyer] goes on to suggest that if [the former husband] wanted to waive the conflict and to advise the other counsel of the situation, one of the other mediators in his chambers, such as […], could assist.

The husband interpreted and claimed that doing so part of a campaign “acting vengefully towards [him] and interfering with his law practice” and claimed that as a result “One or more [of the wife’s firm’s] lawyers have animus toward S.B. such that they are not able to discharge their obligations to J.M. and as officers of the court in an objective and impartial fashion.“  

The court however found that the wife’s lawyer acted properly in this regard (and the other grounds) and did not reach any threshold to disqualify the wife’s lawyer or law firm from acting for her. The court found that this particular claim was not “a traditional conflict of interest.” The wife’s lawyer was found to have appropriately declined to act as a mediator in files in which S.B. was acting for one of the parties. “When S.B. was alerted to [the lawyer’s] position the first time … S.B. could have avoided any perceived future embarrassment by advising opposing counsel that he preferred other mediators.”

One thing I did not mention in the summary above is that in addition to being the wife’s lawyer, the lawyer/mediator had also previously acted as a reference in the husband’s application toward judicial appointment.

Now you should really pause here and think about the situation from the mediator’s perspective on any other mediations where the husband acted for one of the parties: The mediator here has no personal relationships with either of the parties to the mediation. Rather, the mediator assumed the role of advocate on another matter that personally affected a lawyer (!) for one of the parties, and correctly knew he needed to address this issue as a result. Are there guidelines somewhere to tell a mediator how to recognize when a conflict issue arises or what to do in a situation that “potentially” could become an issue? What about having acted as a reference for one of the parties’ lawyer in their quest for judicial appointment – should that need to be disclosed by a mediator as a possible conflict of interest? 

(d)    Current Ontario Guidelines

So, what current resources are there for mediators? I am going to cite from four sources (1) the Arbitration Act, (2) LSO’s Rules of Professional Conduct; FDRIO’s Standard of Practice for FDR Professionals and (3) OAFM’s Standard of Practice. For simplicity and to avoid duplication, links to further resources are found at the end of this paper, including AFCC’s model guidelines for mediators and parenting coordinators, FDRIO’s Standards for Parenting Coordinators (discussed further below) and other adjudicative Codes of Conduct.

To guide you through these resources, recognize five ‘Take-Aways’: 

1.   There is a positive obligation (“shall”) on the impartial professional to disclose a conflict of interest before and during their engagement

2.   The disclosure includes any “facts or relationships that may infer an actual or potential conflict of interest.”

3.   Per the Rules of Professional Conduct, a conflict can arise from conflicting roles (there, between lawyer-neutral and lawyer-advisor).

4.   Conflicts of interest (and, therefore the obligation to avoid them) continue before, during and after the FDR process.

5.   After that disclosure, if all parties agree in writing, the FDR Professional may continue, subject to their own right to withdraw if they choose.

(1)    Section 11 of the Arbitration Act, 1991^[5]

Duty of arbitrator

11(1) An arbitrator shall be independent of the parties and shall act impartially. 

Disclosure before accepting appointment

(2) Before accepting an appointment as arbitrator, a person shall disclose to all parties to the arbitration any circumstances of which he or she is aware that may give rise to a reasonable apprehension of bias.  

Disclosure during arbitration

(3) An arbitrator who, during an arbitration, becomes aware of circumstances that may give rise to a reasonable apprehension of bias shall promptly disclose them to all the parties. 

(2)    Law Society of Ontario

If a lawyer-mediator wishes to ensure they are on the correct side of their professional obligations on conflict of interests, they’re information is limited to the commentary of Rule 5.7-1 (“Lawyer as Mediator”)^[6] which states in regard to conflicts of interest only that:

[2] Generally, neither the lawyer-mediator nor a partner or associate of the lawyer-mediator should render legal representation or give legal advice to either party to the mediation, bearing in mind the provisions of the rules in Section 3.4 (Conflicts) and its commentaries and the common law authorities.

(3)    FDRIO Standards of Practice^[7]

STANDARD 6: ENSURE FREEDOM FROM CONFLICTS OF INTEREST

Process integrity depends on FDR professionals operating without actual or perceived conflicts of interest. All FDR Professionals shall, as far as possible, make appropriate inquiries at the outset of the matter to avoid conflicts of interest which may undermine confidence in their services and thereby the process, and shall disclose all actual or perceived conflicts of interest as soon as they come to the professional’s attention.

COMMENTARY:

A conflict of interest can arise from involvement by the FDR Professional before, during or after the FDR process.

1.   All FDR Professionals shall disclose, as soon as possible, any facts or relationships that may infer an actual or potential conflict of interest. After disclosure, if all parties agree in writing, the FDR Professional may continue, subject to their own right to withdraw if they choose.

(4)    OAFM’s Standard of Practice (2013)^[8]

Impartiality and Procedural Fairness

…

5. The mediator must disclose any known prior involvement with a party either directly or through his or her partners or associates. Mediation may only proceed following such disclosure with the express written consent of all the parties.

6. Following the conclusion of the mediation, the mediator shall remain available as a neutral to assist the parties in the future and shall therefore refrain from assisting the parties in any other capacity without the express written consent of the parties.

(e)    Practical application – Examples of Conflicts of Interest

(i) Practical Example of Relationships that may or may not create conflicts

      You should not infer that the lack of practical examples in the above Standards of Conduct as a deficiency. It is very difficult to list every scenario where a conflict may arise and therefore virtually all Standards or Codes of Conduct don’t even try. 

      However, such a heroic task was undertaken and published in the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (2014) (“IBA”).^[9] These guidelines were cited as “widely recognized as an authoritative source” in a civil matter, where the arbitrator was challenged on relationships that his former law firm had with a party and a witness in the arbitration.^[10] The Guidelines are colour-coded as to the types of conflicts of interest that (1) involve the arbitrator personally which not only creates a duty to disclose but may also be an non-waivable conflict (Red); (2) depending on the facts of a given case, may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence and therefore a duty to disclose (Orange); and (3) where no appearance and no actual conflict of interest exists from an objective point of view. Here there is no duty to disclose (Green). 

      Included as Appendix B is the full list. Like the SSAG, the Guidelines have explanatory information in the actual package that you may wish to read. It is important to note that the list is not meant to be exhaustive, and it does not address multiplicity of roles assumed by the FDR professional.

(ii) Multiplicity of Roles that may create conflicts

      As noted above, the LSO Rules of Professional Conduct advise against assuming conflicting roles of lawyer-neutral and lawyer-advisor.

      However, the issue is more nuanced in FDR. I strongly recommend looking at FDRIO’s Parenting Coordinator’s Standard of Practice^[11] which pragmatically lists possible sequential or multiple roles within a parenting coordination retainer which could easily create a conflict of interest within the process. 

The list includes:

• a party’s lawyer, a child’s lawyer or a child advocate must not be appointed as a Parenting Coordinator in the same case;

• a Parenting Coordinator must not be appointed as the lawyer for one party or a child either during or after the term of the Parenting Coordinator’s appointment with the family;

• a Parenting Coordinator must not be appointed as an assessor either during or after the term of the Parenting Coordinator’s appointment with the family; and

• a Parenting Coordinator must not become a therapist, assessor, consultant, coach, or other mental health care provider, separate and apart, to a party or a child, either during or after the term of the Parenting Coordinator’s appointment with the family.

While Family Mediators may grapple with the risks of personally compiling a Net Family Property statement for parties’ benefit to resolve financial issues, consider the PC who is asked – perhaps for efficiency or frugality – to act as a child’s therapist or child custody assessor. These dual roles conflict, as finder of fact vs. provider of fact. Considering at least one party will be upset by the conclusions made by the PC on an award, the disaffected party now has two routes (based on two exclusive roles) to seek redress against the FDR professional. 

(f)     Conclusion

With this primer you can begin to appreciate the breadth of the issue of conflicts of interest for lawyers and non-lawyer professionals working in FDR. Conflicts don’t just arise in the typical lawyer-confidential information formula. Rather, an FDR neutral has a positive obligation to disclose, avoid and continue to disclose (and possibly continue to avoid) both relationships and roles that may compromise or appear to compromise the mediator’s impartiality. 

There has yet to be a comprehensive list that speaks to family law’s unique situations for FDR lawyers and professionals. This is illustrated by reviewing the scenarios presented earlier in this paper:

(1)    the mediator making or suggesting a referral to a “trusted” business valuator who had taken the mediator out for coffee and promised reciprocity in referrals; 

         See IBA 3.4.3

(2)    the parenting coordinator who is asked to also assume the responsibility as the professional to take the Voice of the Child; 

         See FDRIO PC SoC: 7.01(c)

(3)    a party’s therapist who proposes to mediate, or the mediator who proposes to act as a party’s therapist. 

         See FDRIO PC SoC: 7.01(d)

(4)    the (lawyer) mediator who co-chairs a legal education seminar with a lawyer for one of the parties in a mediation. 

         See IBA 4.3.4

(5)    A lawyer-mediator who is concurrently opposing counsel on another matter with a lawyer for one of the parties in a mediation. What if the representation is not concurrent, but previously?

         Oddly, the IBA does not address these issues. The closest clause is IBA 3.3.7 “Enmity exists between an arbitrator and counsel appearing in the arbitration”, which does not truly reflect the state of being professionally adverse in interest on another matter. 

And what of S.B. v. J.M., where the mediator was acting in a family proceeding for the former spouse against one of the parties’ lawyers at the mediation?

See IBA 3.1.2, in the orange must disclose list, which states “The arbitrator has, within the past three years, served as counsel against one of the parties, or an affiliate of one of the parties, in an unrelated matter.”

Note this section address parties, not parties’ lawyers, demonstrating the non-exhaustive nature of conflicts of law and that we have yet more to do in this area.

____________________________________

^[1] Rules of Professional Conduct, Ontario Law Society, s. 1.1-1

^[2] Managing Conflict of Interest Situations, LawPro (1998)  

https://www.practicepro.ca/wp-content/uploads/2017/09/Managing-Conflict-of-Interest-Situations.pdf

^[3] Tauber v. Tauber, 2009 CanLII 72088 (ON SC), <http://canlii.ca/t/275bn>

^[4] 2019 ONSC 6128 (CanLII), <http://canlii.ca/t/j356c>

^[5] SO 1991, c 17, <http://canlii.ca/t/52wr5#sec11subsec1> 

^[6] https://www.lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/chapter-5

^[7] https://fdrio.ca/home/standardsofpractice/, accessed March 2020

^[8] https://www.oafm.on.ca/about/standards/standards-of-practice/

^[9] Accessible through https://www.ibanet.org/publications/publications_iba_guides_and_free_materials.aspx

^[10] Para 41. The court determined that the relationship was too remote; he couldn’t have possibly conducted a conflict check through his former firm: Jacob Securities Inc. v Typhoon Capital B.V., 2016 ONSC 604 (CanLII), <http://canlii.ca/t/gn39c>

^[11].https://fdrio.ca/parenting-coordination/standards-of-practice-for-certified-specialist-in-parenting-coordination/, accessed March 2020

Shmuel Stern is a family law lawyer currently on sabbatical obtaining his LLM in family law. Follow his his family law caselaw twitter feed @corrollaryrelief

Appendix A – 

International Bar Association Guidelines on Conflicts of Interest in International Arbitration (2014)

Throughout the Application Lists, the term ‘close family member’ refers to a: spouse, sibling, child, parent or life partner, in addition to any other family member with whom a close relationship exists.

Throughout the Application Lists, the term ‘affiliate’ encompasses all companies in a group of companies, including the parent company.

1. Non-Waivable Red List

1.1 There is an identity between a party and the arbitrator, or the arbitrator is a legal representative or employee of an entity that is a party in the arbitration.

1.2 The arbitrator is a manager, director or member of the supervisory board, or has a controlling influence on one of the parties or an entity that has a direct economic interest in the award to be rendered in the arbitration.

1.3 The arbitrator has a significant financial or personal interest in one of the parties, or the outcome of the case.

1.4 The arbitrator or his or her firm regularly advises the party, or an affiliate of the party, and the arbitrator or his or her firm derives significant financial income therefrom.

2. Waivable Red List

2.1  Relationship of the arbitrator to the dispute

2.1.1 The arbitrator has given legal advice, or provided an expert opinion, on the dispute to a party or an affiliate of one of the parties. 

2.1.2 The arbitrator had a prior involvement in the dispute.

2.2 Arbitrator’s direct or indirect interest in the dispute

2.2.1 The arbitrator holds shares, either directly or indirectly, in one of the parties, or an affiliate of one of the parties, this party or an affiliate being privately held.

2.2.2 A close family member of the arbitrator has a significant financial interest in the outcome of the dispute.

2.2.3 The arbitrator, or a close family member of the arbitrator, has a close relationship with a non-party who may be liable to recourse on the part of the unsuccessful party in the dispute.

2.3 Arbitrator’s relationship with the parties or counsel

2.3.1 The arbitrator currently represents or advises one of the parties, or an affiliate of one of the parties.

2.3.2 The arbitrator currently represents or advises the lawyer or law firm acting as counsel for one of the parties.

2.3.3 The arbitrator is a lawyer in the same law firm as the counsel to one of the parties.

2.3.4 The arbitrator is a manager, director or member of the supervisory board, or has a controlling influence in an affiliate of one of the parties, if the affiliate is directly involved in the matters in dispute in the arbitration.

2.3.5 The arbitrator’s law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself.

2.3.6   The arbitrator’s law firm currently has a significant commercial relationship with one of the parties, or an affiliate of one of the parties.

2.3.7 The arbitrator regularly advises one of the parties, or an affiliate of one of the parties, but neither the arbitrator nor his or her firm derives a significant financial income therefrom.

2.3.8 The arbitrator has a close family relationship with one of the parties, or with a manager, director or member of the supervisory board, or any person having a controlling influence in one of the parties, or an affiliate of one of the parties, or with a counsel representing a party.

2.3.9 A close family member of the arbitrator has a significant financial or personal interest in one of the parties, or an affiliate of one of the parties.

3. Orange List 

3.1 Previous services for one of the parties or other involvement in the case 

3.1.1 The arbitrator has, within the past three years, served as counsel for one of the parties, or an affiliate of one of the parties, or has previously advised or been consulted by the party, or an affiliate of the party, making the appointment in an unrelated matter, but the arbitrator and the party, or the affiliate of the party, have no ongoing relationship. 

3.1.2 The arbitrator has, within the past three years, served as counsel against one of the parties, or an affiliate of one of the parties, in an unrelated matter. 

3.1.3 The arbitrator has, within the past three years, been appointed as arbitrator on two or more occasions by one of the parties, or an affiliate of one of the parties.

3.1.4 The arbitrator’s law firm has, within the past three years, acted for or against one of the parties, or an affiliate of one of the parties, in an unrelated matter without the involvement of the arbitrator.

3.1.5 The arbitrator currently serves, or has served within the past three years, as arbitrator in another arbitration on a related issue involving one of the parties, or an affiliate of one of the parties.

3.2 Current services for one of the parties

3.2.1 The arbitrator’s law firm is currently rendering services to one of the parties, or to an affiliate of one of the parties, without creating a significant commercial relationship for the law firm and without the involvement of the arbitrator.

3.2.2 A law firm or other legal organization that shares significant fees or other revenues with the arbitrator’s law firm renders services to one of the parties, or an affiliate of one of the parties, before the Arbitral Tribunal.

3.2.3 The arbitrator or his or her firm represents a party, or an affiliate of one of the parties to the arbitration, on a regular basis, but such representation does not concern the current dispute.

3.3 Relationship between an arbitrator and another arbitrator or counsel

3.3.1 The arbitrator and another arbitrator are lawyers in the same law firm.

3.3.2 The arbitrator and another arbitrator, or the counsel for one of the parties, are members of the same barristers’ chambers. 

3.3.3 The arbitrator was, within the past three years, a partner of, or otherwise affiliated with, another arbitrator or any of the counsel in the arbitration.

3.3.4 A lawyer in the arbitrator’s law firm is an arbitrator in another dispute involving the same party or parties, or an affiliate of one of the parties.

3.3.5 A close family member of the arbitrator is a partner or employee of the law firm representing one of the parties, but is not assisting with the dispute.

3.3.6 A close personal friendship exists between an arbitrator and a counsel of a party.

3.3.7 Enmity exists between an arbitrator and counsel appearing in the arbitration.

3.3.8 The arbitrator has, within the past three years, been appointed on more than three occasions by the same counsel, or the same law firm.

3.3.9 The arbitrator and another arbitrator, or counsel for one of the parties in the arbitration, currently act or have acted together within the past three years as co- counsel.

3.4 Relationship between arbitrator and party and others involved in the arbitration

3.4.1 The arbitrator’s law firm is currently acting adversely to one of the parties, or an affiliate of one of the parties.

3.4.2 The arbitrator has been associated with a party, or an affiliate of one of the parties, in a professional capacity, such as a former employee or partner.

3.4.3 A close personal friendship exists between an arbitrator and a manager or director or a member of the supervisory board of: a party; an entity that has a direct economic interest in the award to be rendered in the arbitration; or any person having a controlling influence, such as a controlling shareholder interest, on one of the parties or an affiliate of one of the parties or a witness or expert.

3.4.4 Enmity exists between an arbitrator and a manager or director or a member of the supervisory board of: a party; an entity that has a direct economic interest in the award; or any person having a controlling influence in one of the parties or an affiliate of one of the parties or a witness or expert.

3.4.5 If the arbitrator is a former judge, he or she has, within the past three years, heard a significant case involving one of the parties, or an affiliate of one of the parties.

3.5  Other circumstances

3.5.1 The arbitrator holds shares, either directly or indirectly, that by reason of number or denomination constitute a material holding in one of the parties, or an affiliate of one of the parties, this party or affiliate being publicly listed.

3.5.2 The arbitrator has publicly advocated a position on the case, whether in a published paper, or speech, or otherwise.

3.5.3 The arbitrator holds a position with the appointing authority with respect to the dispute.

3.5.4 The arbitrator is a manager, director or member of the supervisory board, or has a controlling influence on an affiliate of one of the parties, where the affiliate is not directly involved in the matters in dispute in the arbitration.

4. Green List

4.1  Previously expressed legal opinions

4.1.1  The arbitrator has previously expressed a legal opinion (such as in a law review article or public lecture) concerning an issue that also arises in the arbitration (but this opinion is not focused on the case).

4.2  Current services for one of the parties

4.2.1 A firm, in association or in alliance with the arbitrator’s law firm, but that does not share significant fees or other revenues with the arbitrator’s law firm, renders services to one of the parties, or an affiliate of one of the parties, in an unrelated matter.

4.3 Contacts with another arbitrator, or with counsel for one of the parties

4.3.1 The arbitrator has a relationship with another arbitrator, or with the counsel for one of the parties, through membership in the same professional association, or social or charitable organization, or through a social media network.

4.3.2 The arbitrator and counsel for one of the parties have previously served together as arbitrators.

4.3.3 The arbitrator teaches in the same faculty or school as another arbitrator or counsel to one of the parties, or serves as an officer of a professional association or social or charitable organization with another arbitrator or counsel for one of the parties.

4.3.4 The arbitrator was a speaker, moderator or organizer in one or more conferences, or participated in seminars or working parties of a professional, social or charitable organization, with another arbitrator or counsel to the parties.

4.4 Contacts between the arbitrator and one of the parties

4.4.1 The arbitrator has had an initial contact with a party, or an affiliate of a party (or their counsel) prior to appointment, if this contact is limited to the arbitrator’s availability and qualifications to serve, or to the names of possible candidates for a chairperson, and did not address the merits or procedural aspects of the dispute, other than to provide the arbitrator with a basic understanding of the case.

4.4.2 The arbitrator holds an insignificant amount of shares in one of the parties, or an affiliate of one of the parties, which is publicly listed.

4.4.3 The arbitrator and a manager, director or member of the supervisory board, or any person having a controlling influence on one of the parties, or an affiliate of one of the parties, have worked together as joint experts, or in another professional capacity, including as arbitrators in the same case.

4.4.4 The arbitrator has a relationship with one of the parties or its affiliates through a social media network.

Appendix B –

Further reading

Adjudicator Code of Conduct, Law Society Tribunal, Law Society of Ontario https://lawsocietytribunal.ca/adjudicator-code-of-conduct/

Perrell, Paul M. (1995), Conflicts of Interest in the Legal Profession (Lexis Nexis Canada http://lsuc-voyager.hosted.exlibrisgroup.com/vwebv/holdingsInfo?bibId=28213

Ethical Principles for Judges, Canadian Judicial Council (2004)

https://cjc-ccm.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf

Guidelines for Parenting Coordination, Association of Family and Conciliation Courts (AFCC)(2019)

https://www.afccnet.org/LinkClick.aspx?fileticket=HrJH2pdXcZo%3d&tabid=134&portalid=0&mid=820

Model Standards of Conduct for Mediators (2005) American Arbitration Association

https://adr.org/sites/default/files/document_repository/AAA-Mediators-Model-Standards-of-Conduct-10-14-2010.pdf

Model Standards of Practice for Family and Divorce Mediation, Association of Family and Conciliation Courts (AFCC) (2000) 

https://www.afccnet.org/Portals/0/PublicDocuments/CEFCP/ModelStandardsOfPracticeForFamilyAndDivorceMediation.pdf

Rule 2.4 Lawyer Serving as Third-Party Neutral, American Bar Association’s Model Rules of Professional Conduct (2002) 

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_2_4_lawyer_serving_as_third_party_neutral/