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Archive for the ‘Dispute Resolution’ Columns

Learning From “Building Planes in the Sky”

My heart goes out to everyone – because everyone is affected by the COVID19 pandemic in some way, personally, professionally, or both.

At the risk of seeming insensitive, this situation is both a tragedy and an opportunity. In terms of my work life, what is weighing most heavily on my mind is how we can use this opportunity to reimagine the family justice system and replace it with something new. As many have already pointed out (here and here for example), the COVID19 crisis is exposing significant structural deficiencies of Canada’s current justice system – the court system in . . . [more]

Posted in: Dispute Resolution

What Is Non-Adversarial Advocacy?

There is no provision in the Model Code that specifically regulates non-adversarial advocacy. The Code has an Advocacy section (R 5.1) and it distinguishes advocacy in an adversarial process, but it does not have a corresponding section for advocacy in a non-adversarial process. There is no universal definition of non-adversarial advocacy. In 2016, I conducted empirical research on advocacy in the family law context, and drawing from that I argued that the Code needs to be updated to include non-adversarial advocacy.[1] (See here.) In that study, I talked to collaborative lawyers and family lawyers who have a . . . [more]

Posted in: Dispute Resolution, Legal Ethics

Re-Thinking How We Resolve Disputes in a Time of Global Pandemics and Climate Change

In person if necessary, but not necessarily in person…

The Superior Court of Justice in Ontario issued a notice on March 13, advising people not to go into any courthouse, if they have been advised to self-isolate in response to the growing COVID-19 pandemic. The courts remain open to the media and public (this may have changed since I wrote this…) but anyone who has COVID-19 symptoms, has been advised to self-isolate, or has travelled from an area under a travel advisory should stay away. This includes civil litigants and criminal defendants, who are advised to contact their lawyer or . . . [more]

Posted in: Dispute Resolution

An Inspiring Resource for the “Dispute Resolution Movement”, and Some Thoughts

Kudos to Professor John Lande (one of my heroes in the conflict management field) for his newest publication: Theories of Change for the Dispute Resolution Movement: Actionable Ideas to Revitalize Our Movement.

John’s Indisputably Post February 7th provides a great overview of this unique volume – available for free.

It arose out of John’s worry about the future of ADR in legal education and his sense of discontent with the “usual” conference formats – you know the kind, lots of interesting panels with thought-provoking insights but no call to action. Not surprisingly, people leave the conference and . . . [more]

Posted in: Dispute Resolution

We Need More Evidence-Based Research on Mediation in Canada

Research in New Zealand sheds light on commercial mediation in that country, and highlights the lack of hard data on mediation in Canada.

Grant Morris, law professor at Victoria University of Wellington, New Zealand, published From Anecdote to Evidence: The New Zealand Commercial Mediation Market, in 2017.

(Hat tip to mediator/arbitrator Rick Weiler (@Medarbman) for retweeting a commentary on the NZ paper from a US bankruptcy attorney, which drew my attention to this interesting research.)

Professor Morris’s research project surveyed and interviewed commercial mediators. New Zealand is a relatively small country, so the numbers for this research were quite . . . [more]

Posted in: Dispute Resolution

How Are We Doing on the Shift to Use-Centred Approaches?

In 2015 I wrote a Slaw post entitled “What Does a “user-centred” Approach Really Mean??” I tried to paint a picture of what “user-centred” means in the context of the BC justice system. I would say it was a good first try but drew mostly on examples from other sectors.

Four and a half years later, we have more local examples of how the BC justice system is shifting towards a more user-centric approach including the following:

ONE: The first example is the work of Access to Justice BC (A2JBC). It advocates for a new approach to justice . . . [more]

Posted in: Dispute Resolution

Towards Cyberjustice Retrospective, Part 5: What the Future Holds

As promised in our previous post, we are back to discuss the fourth and final chapter of our upcoming report detailing the pursuits of the “Towards Cyberjustice” Project (the other parts can be found here: part 1part 2part 3). Whereas our previous posts highlighted the various papers, studies and pilot projects conducted by the Cyberjustice Laboratory and its partners throughout this seven-year long venture, our final post is dedicated to the future avenues of research that were inspired by our accomplishments over these last years, which are also supported by the Social . . . [more]

Posted in: Dispute Resolution

Adjudication of Technology and Construction Disputes

The movement toward speedy adjudication of payment disputes in the construction and technology sectors seems to be gaining some momentum this fall, with new programs being launched in Ontario and England.

In England, the Society for Computers and Law (SCL) has launched a new adjudication process for resolution of technology disputes, following several years of study and industry consultation.

SCL was established to educate legal and technology professionals and promote “best practice” for the technology sector in the UK. It identified a need for faster, cheaper resolution of disputes involving long term, high value, and technically complex technology contracts.

Adjudication . . . [more]

Posted in: Dispute Resolution

The Case for Well-Designed Dispute Resolution Clauses

During my final year with Mediate BC, I had the opportunity to study the use of “dispute resolution clauses” (“DR Clauses”) within the BC business community. By “DR Clause” I mean a clause in a contract that sets out how the parties will deal with any disputes arising out of the contract, including the interpretation of the terms of the contract itself (Note 1). As part of the research, I interviewed several inhouse counsel as well as outside counsel/solicitors who acted for prominent BC businesses. I was surprised to find that (Note 2):

  1. Most had not given much thought to
. . . [more]
Posted in: Dispute Resolution

Towards Cyberjustice Retrospective, Part 4: a Look Inside the Courthouse

After a one-year hiatus, we are back with the fourth of a series of blogs highlighting the various papers, studies, and pilot projects conducted by the Cyberjustice Laboratory and its partners throughout the seven-year long “Towards Cyberjustice” Project (the previous parts can be found here: part 1, part 2, part 3). Funded by a Major Collaborative Research Grant from the Social Science and Humanities Research Council, this project has finally drawn to a close and will be the subject of a detailed report to be released later this year. In anticipation of this upcoming . . . [more]

Posted in: Dispute Resolution

Canada Not Among 46 Nations Signing UN Mediation Convention

The United Nations Convention on International Settlement Agreements Resulting from Mediation (under UN custom referred to as the ‘Singapore Convention’) was formally signed in August 2019. Canada is not one of the initial signatories to the Convention, which was previously approved by the UN General Assembly.

The Convention sets requirements for reliance on settlement agreements, standards for enforcing the agreements, and grounds for refusing to grant relief.

It applies specifically to settlement of “international” commercial disputes. It does not apply to consumer disputes. Nor does it apply to family, inheritance or employment matters.

The Convention also expressly does not apply . . . [more]

Posted in: Dispute Resolution

Enhancing Mediation With Technology

In this post I’m highlighting a really helpful and provocative article by Alyson Carrel and Noam Ebner [Note 1] entitled “Mind the Gap: Bringing Technology to the Mediation Table”. The article acknowledges the powerful force of technology in all parts of our lives and points out that the mediation field’s adoption of useful technology has been largely focused on offering online or “distance mediation” processes. The authors warn that unless the mediation field actively explores the use of technology in all parts of the mediation process, including in-person mediation, it risks becoming irrelevant to the next generation of mediators . . . [more]

Posted in: Dispute Resolution