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Archive for the ‘Dispute Resolution’ Columns

Throwing Out the Baby While Keeping the Bathwater

As we’ve posted in our previous column, this summer, the UNCITRAL working group on ODR – which we have discussed extensively in previous blogs – has been given an ultimatum: “the Working Group was given a time limit of one year or no more than two Working Group sessions to undertake this work, after which the work of the Working Group will come to an end, whether or not a result has been achieved”. In other words, the Working Group will most likely have no more than five months left (the two sessions are scheduled for 30 November-4 December 2015, . . . [more]

Posted in: Dispute Resolution

Defending Implicit Reasons: An Expanded Role for Tribunals on Judicial Review?

The Supreme Court recently clarified the rules on the role of a tribunal on a judicial review of one of its decisions: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 (CanLII). The clarifications are useful for courts in deciding whether to give a tribunal standing. Professor Paul Daly has provided a useful overview of the court’s decision on the standing question. In this column, I want to focus on what the court outlined as the basic parameters of what a tribunal can say to the court, once it is given standing.

Justice Rothstein, writing for the . . . [more]

Posted in: Dispute Resolution

Legal Jargon – Alive and Well in Canada?

We were lucky enough to travel in England and Wales in early October. We travelled by plane, train, tube, bus and taxi (in addition to miles of walking). At the train station in Bath we picked up a copy of “Metro” – a tabloid type newspaper similar, perhaps, to Vancouver’s “24 Hours”. An article caught my eye: “Tough sentences…baffling lingo of courts explained”. An experienced (unnamed) barrister apparently believes that the jargon in the English criminal courtroom is so confusing (even law students cannot understand it) that he penned a colourfully worded dictionary to translate certain well-used phrases. Each phrase . . . [more]

Posted in: Dispute Resolution

Legal Profession in the 21st Century: Does It Include ADR?

Supreme Court of Canada Chief Justice Beverley McLachlin’s keynote address to the Canadian Bar Association’s 2015 Annual Meeting this summer looked at “The Legal Profession in the 21st Century”. (Thanks to Malcom Mercer for posting the text of the Chief Justice’s address — and for the additional insights in his recent Slaw column “Innovate or be Innovated?”)

The Chief Justice talks about many challenges facing the legal profession today. She also talks about the challenge of access to justice. But, sadly, she gives little thought to the role of alternatives to court in addressing either of those challenges. . . . [more]

Posted in: Dispute Resolution

The End of ODR

Regular readers of our column may find it ironic that two individuals who have been writing about online dispute resolution (ODR) for years now would announce the death of ODR. Some would find an extra dose of irony in the fact that, in doing so, we took inspiration from the tittle of one of Richard Susskind’s most famous books, in which he heralds ODR as a saving grace for conflict resolution.

We’re obviously not claiming that using online platforms to aid in the resolution of disputes is already a thing of the past, it would go against everything we’ve . . . [more]

Posted in: Dispute Resolution

Re-Imagining Self-Help Materials for the Public

While legal-related self-help materials may be “accessible” (available in plain language) they are not always “deployable” (actually used by a person to deal with their legal problem). I learned this lesson the hard way. Recently, I was asked to create a simple list of civil negotiation and conflict resolution “tips” for use by people unrepresented by counsel. I figured this would be a relatively simple task drawing on my legal and mediation background. I also assumed that I could mimic plain language and aimed for a Grade 9 level. I shared my draft with my colleague for comments and, thankfully, . . . [more]

Posted in: Dispute Resolution

Adjudicators and Term Limits

Adjudicators who are appointed by cabinet order (variously referred to as Order in Council (OIC) or Governor in Council (GIC) appointees) have very little job security, beyond the term of their appointment. Historically, a reappointment was never guaranteed and the reasons for not being renewed in your position were not provided. The difficulty with a non-transparent system of renewal is that no one (including the adjudicator) knows the reason for a non-renewal.

Ontario instituted a new process for reappointments (or renewals) in 2006. The major reform was to limit appointments to ten years, subject to the recommendation of the Tribunal . . . [more]

Posted in: Dispute Resolution

Proposed New “Uniform Arbitration Act” Bears Careful Study

The working group on arbitration legislation of the Uniform Law Conference of Canada (ULCC) has circulated a Discussion Paper on proposed changes to the Uniform Arbitration Act (for domestic arbitrations in Canada). The proposals – and the drafting of the Act – have not yet been reviewed or approved by the ULCC. The goal is the present the proposals to the ULCC at its annual meeting this summer.

This is the second phase of a project that started several years ago to update the ULCC’s Uniform International Commercial Arbitration Act and Uniform Arbitration Act, which have been widely implemented by . . . [more]

Posted in: Dispute Resolution

ODR and the Digital Divide Scarecrow

As many Slaw readers have probably heard, last April, the Ministry of the Attorney General of Ontario engaged in a Public consultation to explore the possibility of offering an online system for traffic and other infractions. As stated on the Ministry’s website, “Ontario is exploring a new approach that could make the process of disputing certain infractions — like traffic matters — faster, easier and more convenient”.

We would wager that, to most citizens, a “faster, easier and more efficient” system sounds pretty good. However, opponents of the proposed “Online Administrative Monetary Penalty System” (or AMP) . . . [more]

Posted in: Dispute Resolution

Adjudicators in the Community: New Frontiers in Apprehension of Bias

Justice Sopinka famously said (in 1989) that judges are not monks (although he should also have said nuns) and can have a role to play in their communities. He was writing in the (mostly) pre-internet era, where social interaction within communities was largely hidden from public view. With the prevalence of the internet, community involvement of judges and adjudicators has become more transparent. Two recent court decisions help to illustrate different views on how adjudicators can engage in their community — both in-person and virtually — and may help to focus a public discussion on reasonable limits to social media . . . [more]

Posted in: Dispute Resolution

Practical Tips for the Brain in Conflict

As part of the BCAMI Symposium held June 8 and 9 2015 in Vancouver, Jean Greatbatch conducted a workshop entitled the “Neuroscience of Conflict”. Jean is an experienced mediator and arbitrator with a special focus on workplace conflict, a member of the board of Mediate BC Society and a busy conflict consultant. She completed her LLM in Conflict Resolution at Osgoode and wrote her thesis on the topic of how the brain deals with conflict. In this post I will provide some highlights of her fascinating and insightful presentation. In 90 minutes she managed to provide a great overview of . . . [more]

Posted in: Dispute Resolution

Urgent Interim Relief Available Under New ADRIC Arbitration Rules

One of the new features of the updated ADR Institute of Canada (ADRIC) Arbitration Rules, which came into effect at the end of 2014, is the express provision for “Urgent Interim Measures”.

Unlike Superior Court judges, arbitrators have no inherent jurisdiction. They depend upon the Act and the arbitration agreement for their jurisdiction. In some situations, it has been unclear whether an arbitrator has the authority to grant interim relief. In others, delays in the appointment of the arbitrator made it impossible to obtain urgent relief. If parties have to go to court for such relief, it may result in . . . [more]

Posted in: Dispute Resolution