Over the summer news broke about a meeting of National Energy Board (NEB) members and stakeholders in 2015, where the Energy East pipeline was discussed. Initially, the NEB stated that they had met with former Quebec premier, Jean Charest, to seek his political advice. Mr. Charest was a consultant to TransCanada (the pipeline company). An access to information request revealed that the pipeline proposal was included in the discussion and the NEB changed its story, blaming a memory lapse.

A Montreal Gazette editorial had strong words for the NEB: “this oversight will only stoke the suspicion of skeptics who fear . . . [more]

“For good ideas and true innovation, you need human interaction, conflict, argument, debate.” 

Margaret Heffernan

These are exciting times. There is a building momentum towards justice reform to improve access to justice in Canada and abroad. Many people are coming forward to join the movement including skilled members of the legal profession, Judiciary and government. Increasingly, reform efforts are also involving users in recognition of the need to design a user-centred justice system.

I find it curious that so many of the new reformers are also skilled conflict management practitioners, including mediators. Just as one example, the BC Family Justice . . . [more]

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

As discussed abundantly in previous posts, numerous court systems worldwide have begun harnessing the power of modern technology in general (and online dispute resolution (ODR) mechanisms in particular) due to the many benefits it stands to offer to the judiciary. Essentially, information and communications technologies have proven to enhance court performance in several manners, such as by reducing trial delays, increasing the efficiency of the judicial system and thus ultimately access to justice, as well as increasing the level of confidence that citizens have in the legal system. As is well . . . [more]

A recent Wednesday: What’s Hot on CanLII drew my attention to an interesting decision of the Ontario Superior Court of Justice on the scope of a defendant’s obligation to mediate in a meaningful way – and the potential cost consequences of the failure to do so. The case also yet another example of the limits on the confidentiality of the mediation process.

In Dimopoulos v Mustafa, 2016 ONSC 4119 (CanLII), the Court dealt with several issues arising from an accident victim’s successful claim for damages under the Insurance Act. A jury awarded $37,000 in general damages, plus $28,800 in . . . [more]

There is no perfect training for any occupation. Guidance from more experienced people is always necessary when developing a new career. This is particularly so for new adjudicators. Training on how to run a hearing is commonly offered to new adjudicators. Even with simulations, that training does not equip adjudicators with everything they need to survive (or, better yet, thrive) in adjudicating.

Mentorship is ideally suited for the development of new adjudicators. A mentor is a more experienced adjudicator who shares his or her perspective with a less experienced adjudicator. Mentor was an Ithacan noble in Homer’s Odyssey. A trusted . . . [more]

Most ADR practitioners know of the contributions of Carrie Menkel-Meadow [Note 1] to the conflict resolution field. She is a “founder” of the US “ADR” movement and continues to deepen and strengthen our global understanding of the field.

Professor Menkel-Meadow attended the 15^th ODR (Online Dispute Resolution) Conference in the Hague in May 2016 and published a helpful commentary on her experience comparing ODR with ADR [Note 2]. She began by suggesting that the modern “ADR movement” grew for three main reasons:

First, what I call ‘quantitative’ ADR – for cheaper, faster and more efficient docket clearing from

The 15^th annual ODR conference, which took place in The Hague. on May 23^rd and 24^th 2016, addressed the very a propos topic that is: “Can ODR Really Help Courts and Improve Access to Justice?” As we’ve discussed in previous posts, more and more courts (e.g. British Columbia’s Civil Resolution Tribunal, tribunals (e.g. Ontario’s proposed online Administrative Monetary Penalty System), and other public bodies are incorporating online dispute resolution tools, mechanisms, and practices into their processes.

Of course, incorporating ODR mechanisms into a Court or a tribunal’s processes implies that said court or . . . [more]

There is a very natural human tendency to claim the game is rigged when one loses.

“The referee was obviously biased against us,” the coach says, explaining the team’s loss.

Donald Trump kept complaining that the Republican Party primary rules were rigged against him, even though he was winning.

So, too, in arbitration, when the losing party seeks to overturn an unfavourable award. This is particularly evident in international arbitration, where there is no right of appeal. Also, in some domestic arbitration cases, where appeals are increasingly limited.

In these situations, lack of jurisdiction or arbitrator bias may be the . . . [more]

Everything that can be thought at all can be thought clearly. Everything that can be said can be said clearly.

Ludwig Wittgenstein

Have something to say, and say it as clearly as you can. That is the only secret of style.

Matthew Arnold

Decision makers have to focus on the substance of the dispute before them and do the important and sometimes difficult work of coming to the right decision. But after that, it remains for them to write the decision clearly and concisely. This is where style in writing takes on such a critical role. If the people reading . . . [more]

When our family is planning a vacation we usually figure out our desires and needs, research the options, consider factors such as time, cost and availability and then map out our adventure. In case something goes wrong, we also make sure our travel and medical insurance are up to date and make sure our loved ones know our itinerary. Our recent trip to Mexico made me wonder why it isn’t more common for lawyers and business people to take the same approach to planning for business relationships and contracts.

Based on my informal discussions with lawyers and the business community . . . [more]

The United Nations Commission on International Trade Law’s Working Group III on Online Dispute Resolution (ODR) met for one last time between February 29^th to March 4^th 2016 to put the finishing touches to UNCITRAL’s Technical Notes on Dispute Resolution, and, in the same breath, complete the mandate – or should we say revised mandate – it had been given by the commission.

As regular readers will remember, the working group was originally given a very broad mandate back in 2010. As stated in document A/CN.9/WG.III/WP.105:

“After discussion, the Commission established a working group to undertake work

Litigation and arbitration are teeming with experts these days.

There are technical experts to explain what happened. Others to say whose fault it was. And another bunch to quantify the damages.

Almost every sizable case has at least one expert on the witness list. Well, never just one. Each side must have their own expert. And, of course, they never agree.

That’s the problem with experts. Recent studies have shown that people have a very hard time understanding what experts say and giving appropriate weight to conflicting expert opinions. Adjudicators are no different from anyone else.

Derek Koehler, a psychology . . . [more]