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Archive for the ‘Dispute Resolution’ Columns

The Conflict Resolution Practitioner of the Future

I am writing this post from our boat in the Gulf Islands of British Columbia – a welcome break from the usual flurry of activity and a time for deeper reflection than is usually available.

The feeling that we are living in a bubble of safety and tranquility was amplified when we picked up a major newspaper at our last port of call. It contained a full frontal onslaught of horrendous news from around the globe: the Gaza Strip, the Ukraine, Iraq, ongoing conflict in Syria, Somalia, the Ebola crisis in West Africa and the environmental disaster in BC’s interior, . . . [more]

Posted in: Dispute Resolution

Become a “Mediation Freak”: Understanding the Role of Incentives in Mediation

In their recently published book Think Like a Freak, Freakonomics authors Steven Levitt and Stephen Dubner offer a simple set of rules to explain the role of incentives in many forms of financial and non-financial interactions.

  1. Figure out what people really care about, not what they say they care about.
  2. Incentivize them on the dimensions that are valuable to them but cheap for you to provide.
  3. Pay attention to how people respond; if their response surprises you or frustrates you, learn from it and try something different.
  4. Whenever possible, create incentives that switch the frame from adversarial to cooperative.
. . . [more]
Posted in: Dispute Resolution

Misconceptions About ODR Beckoning the End of Lawyers

As mentioned in a previous post, a few weeks ago, the Montreal Cyberjustice Laboratory hosted a summer program aimed at demystifying the impacts of technology on conflict resolution in and out of the courtroom. Experts in the field shared their knowledge with approximately fifty students and professionals, all of who were hoping to get ahead of the curb as technology slowly creeps its way into courthouses. As researchers, we found great interest in the numerous questions raised by the students, as they awakened us to new topics that could be explored, as well as made us realize that some . . . [more]

Posted in: Dispute Resolution

Adjudicators’ Neutrality and Political Participation

The Ontario election is over and municipal elections are on the horizon. The Ontario election was a heated one and included the rare participation of police officers in the election campaign. Police officers have a “voice” outside of the institution of policing, since they are unionized. Adjudicators in the justice system do not have this external “voice”. (Although there are organizations of adjudicators, their main focus is continuing education and skills development). Adjudicators, like judges, are restricted from active participation in elections, even though they (like police officers) can have an interest in the outcome. Unlike judges, adjudicators (in Ontario) . . . [more]

Posted in: Dispute Resolution

A Social Lab for BC Family Justice System?

My February post suggested that a “Social Lab” may be a way to tackle the “implementation gap” in justice reform. On June 1 and 2, an important step was taken towards using this approach in British Columbia as a strategy to improve the family justice system for children and families. The BC Law Foundation / Legal Services Society Research Fund funded a two-day workshop in Vancouver facilitated by Adam Kahane and Monica Pohlmann of Reos Partners. This post highlights the key learnings coming out of those two days.

What is a Social Lab?

The workshop provided both a deeper exploration . . . [more]

Posted in: Dispute Resolution

Effective Negotiation Strategy Is an Essential Element of Litigation

Negotiation theory is generally based on two models of negotiation:

- positional negotiation, which includes terms such as “distributive,” “competitive” and/or “adversarial,” bargaining

- interest-based negotiation, which includes terms such as “integrative,” “problem-solving,” or “cooperative problem-solving,” or “collaborative” bargaining

Prof. John Lande, of the University of Missouri School of Law’s Center for the Study of Dispute Resolution, also theorizes a third model, which he calls “ordinary legal negotiation”, which is a hybrid based on norms that develop in certain practice areas, geographical regions or under specific court or ethical rules.

In a pair of forthcoming articles in the Cardozo Journal . . . [more]

Posted in: Dispute Resolution

Public ODR… Could There Really Be Such a Thing?

In one of our earliest blogs, we suggested that, if we want Online Dispute Resolution (ODR) to flourish, it should somehow be incorporated into the judicial process. This is not to say that private ODR mechanisms are doomed to fail, but rather that, as many unsuccessful ODR experiments have demonstrated, the incentives to take part in private ODR mechanisms are often lacking, especially with regard to consumer contracts. Other than places like eBay, where refusal to take part in the platform’s dispute resolution process results in exclusion from the community, there is no real reason for merchants to take . . . [more]

Posted in: Dispute Resolution

Learning From Our Neighbours – the Honoring Families Initiative

Slaw has been a great source of information about a wide variety of creative initiatives to address the need to improve access to justice and bridge the implementation gap. I believe we need to proceed on at least two tracks simultaneously:

  • seeking out and learning from new and existing initiatives around the world and
  • stepping back to create and experiment with brand new things

My last post on the Social Lab approach encourages this two track approach by encouraging deep research and by creating a “container” within which a variety of different initiatives can be designed, tested, tried, modified in . . . [more]

Posted in: Dispute Resolution

Administrative Justice and Earth Day: The Path to “Green” Fairness

Yesterday was Earth Day — an opportunity to reflect on the impact of administrative justice on our environment and how tribunals can balance fairness, efficiency and environmentally-friendly practices. It’s obvious that the environment is an inter-related system that needs to be looked at holistically. However, the administrative justice system is rarely looked at holistically. The actions of a tribunal have an impact on all the users of a tribunal services (parties and representatives). A tribunal’s rules and procedures create its own “ecosystem” that has the potential to impose both environmental costs and benefits.

Two small examples will serve to illustrate: . . . [more]

Posted in: Dispute Resolution

Teaching ODR… Whose Job Is It?

A few months ago, a subscriber to John Gregory’s listserv (which every IT law enthusiast should subscribe to) sent a message regarding how the impact of IT on the legal profession was being taught (or rather wasn’t being taught) in Universities across the country.

Of course, that very question has preoccupied lawyers and legal scholars alike for two decades with regard to IT law, i.e. whether it should be treated as a subject in and of itself (in which case it usually isn’t a mandatory class, meaning that students can go through law school without hearing the word “Internet” . . . [more]

Posted in: Dispute Resolution

Apple v. Samsung – the Saga Continues

The news, reported in late February, that Apple and Samsung had once again failed to resolve their smartphone patent dispute through mediation did not come as a big surprise. At this writing, the technology giants were preparing to go to trial in California in late March, although there was still some prospect that continuing discussions with the mediator could produce a last minute breakthrough.

Published reports citing court filings stated that company executives met with the mediator in a full-day session, followed by a number of phone calls, without success.

The background of this dispute includes significant wins by Apple . . . [more]

Posted in: Dispute Resolution

The Supreme Court on Summary Hearings: The Implications for Administrative Tribunals

The recent decision of the Supreme Court on summary hearings in the courts has sparked discussion within civil litigation circles, including on slaw.ca. But what, if anything, does the decision tell us about the court’s possible approach to summary processes in the administrative justice system?

The court appears to be open to new models of adjudication:

[t]he balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

The court also noted the importance of public adjudication of disputes for the development . . . [more]

Posted in: Dispute Resolution