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Archive for the ‘Dispute Resolution’ Columns

Virtual Hearings, Access to Justice and Privacy

Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode [videoconference] of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work…

Justice Perram, Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Australia)

Like many adjudicators working during the pandemic, I am now adjudicating in a virtual hearing room instead of a real one. The . . . [more]

Posted in: Dispute Resolution

Conflict Resolution Professionals! Participate in CLEBC’s Virtual DR Conference Oct 29-30

Continuing Legal Education BC (CLEBC) is offering its annual Conflict Resolution Conference in an innovative virtual 24-hour format.

This is a great opportunity to learn from and with innovators from around the world who will share how the field is responding to COVID-19, increased calls for anti-oppression work within our systems, and the challenges of shifting our practices online. AND to do all this from the comfort of your home and at very affordable prices.

The conference site describes this unique approach:

“Participants will have the opportunity to learn about:

  • conflict resolution responses to the COVID-19 pandemic, including both new
. . . [more]
Posted in: Dispute Resolution

Online Dispute Resolution – Making a Virtue of Necessity

We lawyers, adjudicators, and mediators are normally quite resistant to change. Dealing constantly with conflict, we seek comfort in the dispute resolution processes we know.

So it’s still surprising to me to see how quickly the “dispute resolution industry” has adapted to the new reality of physically-distanced dispute resolution imposed by the COVID pandemic.

Will we ever want to go back to the old way of doing things?

In the spring there was a flurry of tutorials on how to do online dispute resolution. Many people struggled to learn how to ZOOM. Those who had been advocating and doing online . . . [more]

Posted in: Dispute Resolution

Youth Voices: A Call to Action for Family Lawyers and Mediators–Part 2

This is Part 2 of a two-part piece focusing on how family lawyers and mediators can participate in and support the Youth Voices Initiative.

In Part 1, I described the foundations of the Youth Voices Initiative, overseen by the BC Family Justice Innovation Lab, which aims to improve the well-being and resilience of children and youth who are experiencing parental separation. I tried to connect the dots between the child rights provisions, Adverse Childhood Experience research, the importance of child voice/participation and the family justice system. Out of a human-centred design process emerged a story-based concept which the . . . [more]

Posted in: Dispute Resolution

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