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Archive for the ‘Dispute Resolution’ Columns

Is Arbitration Private and Confidential in Canada?

The limits on privacy and confidentiality of arbitration is often hard to unravel. They are really two separate questions. And the answer to both seems to be: “It depends.”

Is Arbitration Private?

It is generally assumed that arbitration is private – in contrast to the courts, which are generally open to the public, with some exceptions. But where does that assumption arise?

Provincial arbitration statutes generally do not provide that arbitration is private. (See for example the Uniform Arbitration Act and the BC, Alberta, and Ontario Acts.)

Nor does the UNCITRAL Model Law on International Commercial Arbitration, which has . . . [more]

Posted in: Dispute Resolution

Court Navigators – Another Important Tool to Increase Access to Justice

There is an active access to justice movement alive and growing in Canada. It is widely recognized that no one program, tool or activity will, by itself, solve the “access to justice crisis”. Instead, a variety of approaches are needed at all stages of the citizen’s journey through the justice system (not just in the courts).

In the United States, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) issued a resolution in 2015 calling for “100% access to effective assistance for essential civil legal needs…through a continuum of meaningful and appropriate services.” As . . . [more]

Posted in: Dispute Resolution

Arbitration, by Any Other Name

I recently went looking for a simple definition of arbitration and ended up going around in circles.

Wiktionary, the online dictionary, defines arbitrate as to either make a judgement in a dispute as an arbitrator, or to submit a dispute to such a judgment. Arbitrator is then defined as a person to whom the authority to settle or judge a dispute is delegated.

The Oxford English Dictionary is even less helpful. It defines arbitrate as to “reach an authoritative judgement or settlement.” Arbitration is “the use of an arbitrator to settle a dispute,” and arbitrator is “an independent person or . . . [more]

Posted in: Dispute Resolution

Raising Public Awareness of Unbundling: It’s Not “If You Build It, They Will Come”!

Unbundled legal services (also called “limited scope legal services”) are part of a movement that is gaining momentum in Canada. We are excited to see that the BC Family Unbundling Roster hosts 150 family lawyers willing to provide these services to families. And the new Ontario Family Law Limited Scope Services Project offers a directory of lawyers together with information and tools for both lawyers and the public.

“There is no doubt that the assistance of a professional lawyer in a family law matter is invaluable. With “unbundling” that assistance can take the form of help in discrete increments where

. . . [more]
Posted in: Dispute Resolution

Cybersecurity Risks for Mediators and Arbitrators

Despite almost daily reports of privacy breaches and thefts of confidential information, the role of mediators and arbitrators in protecting this information has received relatively little attention in the professional community.

That is rapidly changing.

Now, almost every continuing education session I go to has some discussion on this topic.

Are the mediators and arbitrators in the room complying with privacy laws? This means PIPEDA compliance for those who work in Canada and – more crucially – the new(ish) European General Data Protection Regulation (GDPR) which affects anyone who collects information relating to EU citizens.

This was brought home again . . . [more]

Posted in: Dispute Resolution

New Skills for Lawyers and Conflict Management Professionals

Two important new articles came across my desk in the last week or so. They each offer lists of new skills and aptitudes that will be needed by lawyers and conflict management professionals (mediators, arbitrators, negotiators etc.) in the “new world”.

In the first article, Noam Ebner and Elayne E. Greenberg explore this topic with the provocative title “What Dinosaurs Can Teach Lawyers About How to Avoid Extinction in the ODR Evolution.” (Note 1) They begin with the following salvo to the legal profession:

This paper is a wake-up call for the legal profession: Heed the justice changes

. . . [more]
Posted in: Dispute Resolution

Competent to Decide My Own Competence

The idea that an arbitrator has the authority to determine her or his own jurisdiction, including deciding the scope and validity of an arbitration agreement itself, may seem odd at first, but it is a core principle of international arbitration and has been adopted by the Canadian courts – with some reservations – in domestic arbitration.

The “competence-competence” principle, as it is generally referred to internationally and in Canada, is embedded in the UNCITRAL Model Law, adopted in 1985 and updated in 2006, and is credited with much of the growth of international commercial arbitration.

There are many reasons . . . [more]

Posted in: Dispute Resolution

What Does It Mean to Empower Your Clients?

To many clients, one of the key benefits of unbundled legal services is that clients have the opportunity to play a key role in solving their own legal problems. They appreciate the “partnership” approach between lawyer and client and say that they feel more “empowered”. Forrest (“Woody”) Mosten, the Father of Unbundling, says:

“Unbundling is based on a power-sharing between attorney and client as to how to handle the case and who will do the work. Also, unbundling and Collaborative Law both underscore client empowerment as the basis for these forms of legal services.”

An empowerment approach also helps . . . [more]

Posted in: Dispute Resolution

Are We Done Yet?

If parties are successful in reaching an agreement at the end of a long day (or more) of mediation, one of the final challenges is preparing a written document everyone can sign to capture the terms of the settlement.

One difficulty is to make it detailed enough to cover all of the essential terms, without leaving any loose ends.

Another is to avoid getting bogged down with overly complex legal drafting that can simply open up new issues or unravel a still-fragile agreement.

The more complex the settlement, the more difficult it is to balance these two competing challenges. It’s . . . [more]

Posted in: Dispute Resolution

Team Diversity, Conflict and the Need for Robust Discussion – Part 2

Have you ever wanted to say something in a team meeting but didn’t because you were worried about looking stupid or being judged or losing your job? If so, you might have experienced what we call a “psychological safety deficit” – a key barrier to the kind of robust discussion that is needed in today’s complex environment.

In Part One of this series we examined why cognitive diversity is essential to effective decision-making but can lead to conflict. We need to create a safe container within which to roster healthy and robust discussion and avoid “groupthink”. In Part . . . [more]

Posted in: Dispute Resolution

Ombudsman Impartiality Is a Delicate Balance

The recent announcement that another major Canadian bank is withdrawing from the national banking ombudsman service in favour of a private dispute resolution service for customer banking complaints raises interesting questions about independence and impartiality.

In September, the Ombudsman for Banking Services and Investments (OBSI) confirmed that Bank of Nova Scotia will no longer use the service for banking complaints as of November 1. Instead, it will join Royal Bank of Canada and Toronto-Dominion Bank in using ADR Chambers Banking Ombuds Office (ADRBO) to resolve complaints, the Globe and Mail reported.

Scotiabank will still use OBSI for investment disputes, . . . [more]

Posted in: Dispute Resolution

Team Diversity, Conflict and the Need for Robust Discussion – Part 1

This is the first of a two part series exploring how teams can operate effectively in organizations and environments characterized by complexity and constant change.

Each of us works in multiple teams. Think law firm partnership meetings, law firm committees and practice groups, professional organizational teams, project teams, pro bono teams, multi-disciplinary teams working on a large client file, etc. In the “old days”, teams were stable and relatively homogeneous. They set goals, used Gantt charts, planned the work and worked the plan.

Today, the environment in which we work is complex and constantly changing, team members come and go . . . [more]

Posted in: Dispute Resolution