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Archive for the ‘Dispute Resolution’ Columns

More Choice for Clients Is Better, Right? Yes, But…

In his 2005 Ted Talk “The Paradox of Choice” Barry Schwartz presented an insightful condemnation of the “official dogma” of the modern, western, industrialized world. The “official dogma” states that real freedom comes from maximizing choice. Seems reasonable, even obvious. However, he emphasizes that too much choice has two negative effects on people:

  1. Too much choice produces paralysis rather than liberation. With many options to choose from people find it difficult to choose at all; and
  2. Too much choice makes us less satisfied with the result of our choice even if it was a good decision. This is because of
. . . [more]
Posted in: Dispute Resolution

Technology Remains an Afterthought for Many Within the Legal System

Back in late September, the Court of the Future Network, in partnership with the Institut des hautes études sur la justice and the Cyberjustice Laboratory, organised its annual Court tour which – this year – took place in California, home of Silicon Valley and many technological innovators. For this very reason, the tour took a technological turn and focussed on some of the key technological issues confronting courts, such as:

  • The paperless courtroom: digital documents and evidence display
  • Cyber security
  • Immersive video-conferencing
  • Integrated courtroom management
  • Social media for courts
  • Remote interpreting
  • Online Dispute Resolution and Artificial Intelligence

The purpose of . . . [more]

Posted in: Dispute Resolution

The Psychology of Negotiation

I’ve been thinking a lot lately about the psychology of negotiation.

In the negotiation course I teach at University of Toronto School of Continuing Studies a few times a year, I have consistently seen that the students are quite good at understanding their own negotiation styles, strengths and weaknesses. They understand the difference between their positions and interests. They recognize the importance of empathy in building a negotiating relationship and value the active listing and other negotiating skills we practice.

Where these students – and most negotiators, I think – have trouble is understanding the motivations and interests of their . . . [more]

Posted in: Dispute Resolution

Final Report of Mediate BC’s BC Family Justice Unbundled Legal Services Project Now Available

As many of you know, unbundled legal services help to fill the gap for people who do not qualify for legal aid and cannot afford full representation. Law Societies in many jurisdictions have formally approved unbundling (also called limited scope legal services) but few lawyers were offering these services to the public. The purpose of the BC Family Justice Unbundled Legal Services Project (the “Project”) was to find ways to encourage more lawyers to offer these services.

After an 18 month process, I’m pleased to advise that the Project’s final report and the report of the independent evaluation of the . . . [more]

Posted in: Dispute Resolution

ODR for NAFTA

Back in June of this year, the Cyberjustice Laboratory played host to the NAFTA Advisory Committee on Private Commercial Disputes, commonly referred to as the NAFTA 2022 committee since its creation stems from article 2022 of the agreement:

  1. Each Party shall, to the maximum extent possible, encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes between private parties in the free trade area.
  2. To this end, each Party shall provide appropriate procedures to ensure observance of agreements to arbitrate and for the recognition and enforcement of arbitral
. . . [more]
Posted in: Dispute Resolution

Recent International Surveys Shed Light on Why We Litigate, Even Though We Say We Prefer Mediation or Arbitration

Many business leaders and in-house counsel say that they strongly prefer alternatives to litigation. So why is litigation still the default process for most commercial disputes?

My previous Slaw column looked at the question of whether lawyers are “hijacking” mediation and arbitration. I speculated that one of the problems may simply be that lawyers are risk-averse. This leads them to follow the well-trodden path of litigation, rather than exploring less well-known alternatives.

Some recent research may shed light on the apparent disconnect between the dispute resolution parties say they want and what they actually do.

Pre-empting and Resolving Technology, Media . . . [more]

Posted in: Dispute Resolution

When Questions Are More Important Than Answers

“Asking the right questions takes as much skill as giving the right answers.” – Robert Half

Lawyers are taught to be experts; having the right answer is a fundamental part of our role. But what did we learn about asking the right questions?

I don’t recall learning very much in law school about how to ask good questions. We learned about the difference between closed, open and leading questions. Closed questions required a yes/no answer; leading questions suggested the (desired) answer.

The clear implication was to avoid the truly “open” questions. In fact, we were taught never to ask a . . . [more]

Posted in: Dispute Resolution

Are Lawyers “Hijacking” Mediation and Arbitration?

Having recently left the practice of law to devote my time exclusively to mediation and arbitration (with some teaching and writing on the side), I was intrigued when my ADR friend and colleague Colm Brannigan posted a link to a recent LinkedIn blog that asks: “Have Lawyers Hijacked the Promise of Mediation?”

Author Max Kimber, an Australian mediator and barrister, says it’s time to re-visit the the role of lawyers in mediation, both as representatives of the parties in that process and as mediators.

The same may be said of arbitration, I think.

Kimber talks about the “promise of mediation” . . . [more]

Posted in: Dispute Resolution

WanaCry as a Reason Why Courts Should Invest More NOT Less in Technology

In the aftermath of the first wave of “attacks” using WanaCrypt0r 2.0, a variant of the WanaCry ransomware that started infecting systems around the world, most notably the British National Health Service, on May 12th, 2017, comment boards and blogs have been abuzz with statements regarding the risks of a overly digitalized world. For those who caution against the implementation of technological solutions within the legal system, this attack only serves as another example as to why, in their minds, our paper-based system is still the safest way to manage legal files.

As reports show, they might . . . [more]

Posted in: Dispute Resolution, Legal Technology

Dispute Resolution of the Future: 24 Hour Access, No Set Dress Code

Forget the business attire, forget the hearing room, and forget regular business hours. The future may even be dispute resolution in your pyjamas. Necessity being the mother of invention, an increasing need for better access to justice and the means for delivering it means that your home computer, laptop, or mobile device can serve as the place where disputes are resolved.

In Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854 at para. 10, Lamer CJ noted that the rise of the administrative state has been marked by the creation of institutions other than the courts. While Lamer . . . [more]

Posted in: Administrative Law, Dispute Resolution

Delay and Access to Justice: The Never Ending Story

“Fresh justice is the sweetest”, Sir Francis Bacon, 1618

“..we may look forward to a near future when our courts will be swift and certain agents of Justice”, Dean Roscoe Pound, 1906

“Our system…has come to tolerate excessive delays”, SCC majority in R. v. Jordan, 2016

Delay in court or tribunal proceedings has been an issue at least since the Magna Carta of 1215, when King John promised that “to no man will we sell, to no man deny, or delay right or justice”. Over 800 years later, the Supreme Court of Canada has revisited the issue of delay . . . [more]

Posted in: Dispute Resolution

How Scarcity Can Change Us; Why the Justice System Needs Empathy

The justice system (and the court system in particular) is complex and can be very confusing and intimidating for people. Access to justice efforts are focusing on ways to alleviate these pressures. Progress is slow but determined with some hopeful glimpses of progress.

What continues to disturb me are the surprisingly frequent references to both clients and self-represented litigants (“SRLs”) as “difficult” or “obsessive” or suffering from mental health challenges. [Note 1] A recent example is the current series from Lawpro on “Dealing with the Difficult Client”. Part 3 (March 23, 2017) focuses on “the obsessed client” described as “the . . . [more]

Posted in: Dispute Resolution