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Archive for the ‘Dispute Resolution’ Columns

Attention Conflict Resolvers: Participate in Conflict Resolution Week October 11 – 18, 2014

Mediate BC has taken the bold step of proclaiming Oct 11 – 18, 2014 as Conflict Resolution Week in British Columbia.

During Conflict Resolution Week Mediate BC will be supporting its Roster mediators who are involved in various activities and events to raise public awareness of effective, timely and affordable problem-solving approaches. Check out Mediate BC’s website for examples of the activities to date. We will also be announcing the results of our 2014 Mediator Survey.

While Mediate BC’s focus is primarily mediation and other consensual dispute resolution approaches, Conflict Resolution Week encompasses a much broader spectrum of people striving . . . [more]

Posted in: Dispute Resolution

The Eyes Have It

There has been a fair bit of discussion recently about the pros and cons on online dispute resolution (ODR).

Using technology to help people resolve disputes does have many advantages. It can increase access to justice –both collaborative (mediation) and adjudicative (arbitration). It can be faster and cheaper than other options.

The availability of ODR tools is an important factor in consumer confidence for electronic commerce. People are simply more willing to buy things online if they know there is a way to resolve problems.

But there is one inherent problem with many ODR systems. You can’t look your opponent . . . [more]

Posted in: Dispute Resolution

ODR as a Viable Business Model for Resolving “Right to Be Forgotten” Disputes

[Sarit Mizrahi assisted in the preparation of this column.]

By now, we’ve all heard about the Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD), Mario Costeja González decision rendered last May by the Court of Justice of the European Union (CJEU). However, for those who’ve been living under the proverbial rock, let us go over the facts:

A complaint was lodged with the Spanish Data Protection Authority (“AEPD”) by Mr. Gonzalez on March 5, 2010 against a Spanish newspaper publisher, Google Spain and Google Inc. due to the fact that, when his . . . [more]

Posted in: Dispute Resolution

Learning to Be an Adjudicator: The Importance of Time

“By three methods we may learn wisdom: First, by reflection, which is noblest; Second, by imitation, which is easiest; and third, by experience, which is the bitterest,” Confucius

An important aspect of access to justice is the skill of adjudicators in both managing hearings and issuing decisions. How do we ensure that we have the right adjudicators to efficiently and fairly manage the hearing process as well as issue timely and fair decisions?

The appointment process is critical for selecting people with the right aptitudes and work ethic. However, the appointment process is not within the control of tribunals and . . . [more]

Posted in: Dispute Resolution

The Conflict Resolution Practitioner of the Future

I am writing this post from our boat in the Gulf Islands of British Columbia – a welcome break from the usual flurry of activity and a time for deeper reflection than is usually available.

The feeling that we are living in a bubble of safety and tranquility was amplified when we picked up a major newspaper at our last port of call. It contained a full frontal onslaught of horrendous news from around the globe: the Gaza Strip, the Ukraine, Iraq, ongoing conflict in Syria, Somalia, the Ebola crisis in West Africa and the environmental disaster in BC’s interior, . . . [more]

Posted in: Dispute Resolution

Become a “Mediation Freak”: Understanding the Role of Incentives in Mediation

In their recently published book Think Like a Freak, Freakonomics authors Steven Levitt and Stephen Dubner offer a simple set of rules to explain the role of incentives in many forms of financial and non-financial interactions.

  1. Figure out what people really care about, not what they say they care about.
  2. Incentivize them on the dimensions that are valuable to them but cheap for you to provide.
  3. Pay attention to how people respond; if their response surprises you or frustrates you, learn from it and try something different.
  4. Whenever possible, create incentives that switch the frame from adversarial to cooperative.
. . . [more]
Posted in: Dispute Resolution

Misconceptions About ODR Beckoning the End of Lawyers

As mentioned in a previous post, a few weeks ago, the Montreal Cyberjustice Laboratory hosted a summer program aimed at demystifying the impacts of technology on conflict resolution in and out of the courtroom. Experts in the field shared their knowledge with approximately fifty students and professionals, all of who were hoping to get ahead of the curb as technology slowly creeps its way into courthouses. As researchers, we found great interest in the numerous questions raised by the students, as they awakened us to new topics that could be explored, as well as made us realize that some . . . [more]

Posted in: Dispute Resolution

Adjudicators’ Neutrality and Political Participation

The Ontario election is over and municipal elections are on the horizon. The Ontario election was a heated one and included the rare participation of police officers in the election campaign. Police officers have a “voice” outside of the institution of policing, since they are unionized. Adjudicators in the justice system do not have this external “voice”. (Although there are organizations of adjudicators, their main focus is continuing education and skills development). Adjudicators, like judges, are restricted from active participation in elections, even though they (like police officers) can have an interest in the outcome. Unlike judges, adjudicators (in Ontario) . . . [more]

Posted in: Dispute Resolution

A Social Lab for BC Family Justice System?

My February post suggested that a “Social Lab” may be a way to tackle the “implementation gap” in justice reform. On June 1 and 2, an important step was taken towards using this approach in British Columbia as a strategy to improve the family justice system for children and families. The BC Law Foundation / Legal Services Society Research Fund funded a two-day workshop in Vancouver facilitated by Adam Kahane and Monica Pohlmann of Reos Partners. This post highlights the key learnings coming out of those two days.

What is a Social Lab?

The workshop provided both a deeper exploration . . . [more]

Posted in: Dispute Resolution

Effective Negotiation Strategy Is an Essential Element of Litigation

Negotiation theory is generally based on two models of negotiation:

- positional negotiation, which includes terms such as “distributive,” “competitive” and/or “adversarial,” bargaining

- interest-based negotiation, which includes terms such as “integrative,” “problem-solving,” or “cooperative problem-solving,” or “collaborative” bargaining

Prof. John Lande, of the University of Missouri School of Law’s Center for the Study of Dispute Resolution, also theorizes a third model, which he calls “ordinary legal negotiation”, which is a hybrid based on norms that develop in certain practice areas, geographical regions or under specific court or ethical rules.

In a pair of forthcoming articles in the Cardozo Journal . . . [more]

Posted in: Dispute Resolution

Public ODR… Could There Really Be Such a Thing?

In one of our earliest blogs, we suggested that, if we want Online Dispute Resolution (ODR) to flourish, it should somehow be incorporated into the judicial process. This is not to say that private ODR mechanisms are doomed to fail, but rather that, as many unsuccessful ODR experiments have demonstrated, the incentives to take part in private ODR mechanisms are often lacking, especially with regard to consumer contracts. Other than places like eBay, where refusal to take part in the platform’s dispute resolution process results in exclusion from the community, there is no real reason for merchants to take . . . [more]

Posted in: Dispute Resolution

Learning From Our Neighbours – the Honoring Families Initiative

Slaw has been a great source of information about a wide variety of creative initiatives to address the need to improve access to justice and bridge the implementation gap. I believe we need to proceed on at least two tracks simultaneously:

  • seeking out and learning from new and existing initiatives around the world and
  • stepping back to create and experiment with brand new things

My last post on the Social Lab approach encourages this two track approach by encouraging deep research and by creating a “container” within which a variety of different initiatives can be designed, tested, tried, modified in . . . [more]

Posted in: Dispute Resolution