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Archive for the ‘Dispute Resolution’ Columns

Mentoring for Adjudicators: The Need for Guidelines

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]

Posted in: Dispute Resolution

The “Combo” of Human Touch and Technology

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 15th 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

. . . [more]
Posted in: Dispute Resolution

Does eAccess to Court Records Infringe on Copyrights?

The 15th annual ODR conference, which took place in The Hague. on May 23rd and 24th 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]

Posted in: Dispute Resolution

The Role of Arbitrator Disclosure in International Arbitration

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]

Posted in: Dispute Resolution

“As Smooth as a Grape”: Style in Decision Writing

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]

Posted in: Dispute Resolution

Dispute Resolution – Why Early Planning Makes Sense

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]

Posted in: Dispute Resolution

UNCITRAL Adopts Technical Notes on ODR

The United Nations Commission on International Trade Law’s Working Group III on Online Dispute Resolution (ODR) met for one last time between February 29th to March 4th 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

. . . [more]
Posted in: Dispute Resolution

The Problem With Experts

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]

Posted in: Dispute Resolution

The Limits of Active Adjudication: Tales From the Front Lines

Active adjudication is an approach to dispute resolution that puts more emphasis on the role of the adjudicator in focusing the issues in dispute and the process for resolving those issues. It stands in contrast to the classic adversarial model of dispute resolution that puts more emphasis on the parties shaping the matters in dispute and the evidence required to prove their case. Active adjudication has many advantages for access to justice. I have written about this before. Active adjudication can result in shorter processes as well as levelling the playing field, to some extent, for self-represented parties.

The . . . [more]

Posted in: Dispute Resolution

The Missing Ingredient for Effective Health Care Reform…Empathy

For some years I have been following Dr. Brian Goldman, a veteran ER physician and one of Canada’s most trusted medical broadcasters. His CBC radio show “White Coat, Black Art” tackles tough issues, makes sense of “bafflegab” and highlights important new innovations. His book “The Secret Language of Doctors” is an illuminating view inside of the medical system and a great read.

I went to his Vancouver Institute lecture in Vancouver in January entitled: “Disrupt Me + Engage You: The Health Care Revolution”. I couldn’t wait to hear what he had to say about system change in the health . . . [more]

Posted in: Dispute Resolution

Med-Arb: The Debate Continues

A couple years ago Slaw columnists Kari D. Boyle and Ian Mackenzie collaborated on a pair of excellent articles on Med-Arb – Kerri from the mediator perspective and Ian from the adjudication perspective.

These articles insightfully highlight many of the legal, ethical and practical issues surrounding the idea of having a single person act as both mediator and arbitrator – issues that continue to be hotly debated among mediators and arbitrators.

Med-arb has become widely accepted in labour, family and other areas. The main reason is efficiency.

There are many different models of med-arb. All of them rest on . . . [more]

Posted in: Dispute Resolution

Technological Procurement as a Component of Judicial Independence

On January 6th, 2016, different media outlets reported that a certain number of federal courts, including the Supreme Court of Canada, were contesting the issue of a decree (2015-1071) stating that procurement for government IT services now needs to go through Shared Services Canada. As specified in the decree: “a department listed in Schedule I, I.1 or II of the Financial Administration Act must obtain the services specified in paragraph (b) exclusively from the Minister designated for the purposes of the Shared Services Canada Act through Shared Services Canada and is not permitted to . . . [more]

Posted in: Dispute Resolution