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]

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]

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]

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]

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]

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]

This is the third of a series of blogs, the first of which was published on February 12^th, 2018, highlighting the various papers, studies, and pilot projects conducted by the Cyberjustice Laboratory throughout the course of its “Towards Cyberjustice” Project. Funded by a Major Collaborative Research Grant from the Social Science and Humanities Research Council, this seven-year 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 report, this blog post will briefly describe its second chapter, which details the . . . [more]

The international football (soccer) circus known as the FIFA World Cup rolls around every four years and I spend way too much of the early summer watching the games. The best place to watch, I think, is an outdoor patio, preferably surrounded by partisans of one or both of the contenders. In Toronto it’s easy to find supporters for every team in the tournament.

This year, the games were played at either late morning or early afternoon Toronto time. Downtown office buildings have giant screens in lobbies or food courts so fans don’t have to sneak too far away from . . . [more]

Everyone “gives back” in different ways. One of the ways I have tried to give back over the years is to serve on various Boards of Directors. Yesterday was my last day as a member of the Board of the BC Courthouse Library Society (CLBC). I leave with immense gratitude to CLBC, its board members and staff, realizing that whatever I was able to contribute to CLBC was eclipsed by the benefits that I gained in learning, expertise and experience.

One of the reasons I agreed to join the CLBC board was a chance to work with, and learn from, . . . [more]

Readers expecting to glance at part 3 of our multi part Towards Cyberjustice retrospective will have to wait a few extra weeks since we felt it more timely to address recent reports coming out of the European Union following the two-year anniversary of the EU’s online dispute resolution (ODR) platform.

As a reminder, the platform was launched in 2016 as per Regulation (EU) no 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR). As . . . [more]

As an arbitrator, it is a nerve-wracking and somewhat fearful experience to have an award challenged in court. I’m glad to say it isn’t a common experience for me (knock on wood), but it happened recently.

I was relieved to read the judgement – skipping straight to the last page to see whether I had got things right or not. (Do judges do that, I wonder.) The court said I had – big sigh of relief – but it prompted me to think about what what courts expect from us as arbitrators. It was a reminder of some essential things . . . [more]

Over the years I have been asked many times, by lawyers, law students and others, whether they should take mediation training. Most were interested in mediation, many participated as counsel at mediation but few planned to be full-time mediators. My standard answer has been that mediation training was valuable to everyone as it provides key life skills that are useful in all parts of our lives, not just in our legal career. Mediation training teaches us about the dynamics of human behaviour and provides a fundamental suite of skills for dealing with inevitable conflict in healthy ways that prevent conflict . . . [more]