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Archive for the ‘Dispute Resolution’ Columns

Youth Voices: A Call to Action for Family Lawyers and Mediators–Part 1

This is Part 1 of a two-part piece focusing on how family lawyers and mediators can participate in and support the Youth Voices Initiative.

It has been 10 years since Brené Brown published her book The Gifts of Imperfection. In Brené’s words:

This book was an invitation to join a wholehearted revolution. “A small, quiet, grassroots movement that starts with each of us saying, ‘My story matters because I matter.’ Revolution might sound a little dramatic, but in this world, choosing authenticity and worthiness is an absolute act of resistance.”

What does this have to do with the Youth . . . [more]

Posted in: Dispute Resolution

Delay and Access to Justice: Revisited

“…Why, some of the work that I have by me now has been in my possession for years and years, and there isn’t a fingermark on it. I take a great pride in my work; I take it down now and then and dust it. No man keeps his work in a better state of preservation than I do.”

Jerome K. Jerome, Three Men in a Boat (To Say Nothing of the Dog)

In my last Slaw column I wrote about the potential impact of the Supreme Court’s decision on delay in criminal proceedings (R. v Jordan). In . . . [more]

Posted in: Dispute Resolution

Uber v. Heller: An “Agreement Not to Arbitrate” Is Unconscionable

Much has been written over the past weeks about the Supreme Court of Canada decision in Uber v. Heller, one of the most anticipated decisions of the year – at least in arbitration and employment law circles.

I won’t go into a detailed analysis of the decision in the face of much more learned comments. But I do want to suggest that the Court provides some practical lessons for those drafting and those seeking to engage (or avoid) arbitration agreements.

First, and most important, don’t try to use arbitration to frustrate legitimate claims.

Sadly this has become a common . . . [more]

Posted in: Dispute Resolution

Jigsaw Puzzles and System Change

Since mid-March, my husband and I have been trying to “stay safe, stay home”. But it wasn’t until May that I decided to try a jigsaw puzzle.

I’m now on my fourth puzzle and offer some reflections on how jigsaw puzzles can illuminate the challenge of deep system change:

  1. Open mind: To make it harder I put the box away and I don’t look at the photo of the finished puzzle until I’m done. This seems closer to the reality of system change. We try not to have a particular image or solution in mind and to be open
. . . [more]
Posted in: Dispute Resolution

Zooming in on the Importance of Upholding Legal Values in Virtual Trials

The current COVID-19 pandemic has forced us to move many of our daily activities online. Trials have been no exception to this transformation, relying on platforms such as Zoom to give people their day in court (to be clear, Zoom is not the only platform to have been used by the courts, but, according to a survey done by Norton Rose Fulbright, it seems to be one of the most prevalent). As demonstrated by some of the cases that have gone forward in this fashion, the use of videoconferencing in court proceedings is not without sizeable risks. In a . . . [more]

Posted in: Dispute Resolution

New Med-Arb Rules and Professional Designation for Canada

The ADR Institute of Canada (ADRIC) has recently adopted Med-Arb Rules and announced a new Chartered Mediator-Arbitrator (C.Med-Arb) professional designation to enhance the use of med-arb in Canada.

The new Rules and professional designation recognize that med-arb is a distinct process that is different from either mediation or arbitration on their own.

In med-arb, the same person acts as both mediator and arbitrator, typically endeavouring to help the parties settle their dispute in a first mediation phase, then making a binding decision on all unresolved issues in a second arbitration phase.

The process offers parties both flexibility and finality, and . . . [more]

Posted in: Dispute Resolution

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