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Archive for the ‘Dispute Resolution’ Columns

How ODR Can Benefit From R. v. Jordan… How R. v. Jordan Can Benefit From ODR

As most lawyers would agree, few recent court cases have had the impact of last year’s Supreme Court decision in R. v. Jordan. A quick look at the CanLII website tells us that it has already been cited in over 200 other decisions in the 8 months since it was rendered and many court administrators have been tasked with finding new ways to comply with its teachings.

As a reminder, the decision affirmed, among other things, that:

[49] The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For . . . [more]

Posted in: Dispute Resolution

New ICC Arbitration Rules and Guidelines

The International Chamber of Commerce has adopted amendments to its Rules of Arbitration, along with a new, consolidated version of its Note to Parties and Arbitral Tribunals.

These Rules and guidelines are obviously important for international arbitration, but they may provide useful guidance on good practice for ad hoc and administered arbitrations in Canada as well.

The amended ICC Rules came into force on March 1, 2017.

The most significant changes relate to the Expedited Procedure Rules (Article 30 and Appendix VI) which will now be the default rules for claims under USD 2 million, and may also . . . [more]

Posted in: Dispute Resolution

Change ‘R Us: Noam Ebner on Change & Negotiation

I keep a folder with blog post ideas. Sometimes it is hard to choose which topic to focus on for my Slaw column. Not this time.

Professor John Lande’s column on February 12th recommended (commanded?) readers to find and read Noam Ebner’s recent article entitled Negotiation is Changing. Never one to ignore a recommendation from one of my conflict management heroes, I downloaded and read the article. It is fascinating and thought-provoking. I heartily urge anyone involved in negotiation to do the same. I use that phrase in its widest sense to include the legal profession, the conflict resolution/management . . . [more]

Posted in: Dispute Resolution

Hold the Phone: Telephone Hearings and Access to Justice

The telephone is old technology. Recent reports have shown that speaking by phone may be on the way out. However, the telephone is still an important part of the toolkit for tribunals in ensuring access to justice. Videoconferencing is the (relatively) new flavour in administrative justice, but we shouldn’t lose sight of the telephone as an accessible and technologically easier tool.

A recent Ontario Divisional Court decision has highlighted the advantages of teleconference hearings: “[a teleconference hearing] can be a useful tool for Tribunals to have to hold hearings fairly and expeditiously, especially given the size of this Province”. . . . [more]

Posted in: Dispute Resolution

Publicly Funded Consumer ODR Is Now a Reality in Quebec

Ever since we started this regular column back in 2012, we’ve been defending a basic thesis: for consumer online dispute resolution (ODR) to succeed, it needs to be publicly funded and retailers need to be given a clear incentive to take part. This is the thesis we aimed to test when, on October 7th of 2016, the Cyberjustice Laboratory (the “Lab”), in collaboration with Quebec’ consumer protection agency (the Office de la protection du consommateur or “OPC”), and the ministère de la Justice du Québec, decided to launched a pilot project around the Lab’s Platform to Assist in . . . [more]

Posted in: Dispute Resolution

Research Into Use of Dispute Resolution Boards in Large IT Projects

A new year means new opportunities and challenges.

For me, this means that, after years of gradual transition from being a legal advisor and advocate to focusing on acting as a neutral mediator and arbitrator, I’ve finally completed my metamorphosis, formally retiring from the practice of law as of the end of 2016.

One of my new projects for 2017 is with a working group of the International Technology Law Association (ITechLaw) that is preparing a report on the use of dispute resolution boards (DRBs) in large, long-term IT development and implementation contracts. We are also looking at . . . [more]

Posted in: Dispute Resolution

Building an Unbundling Practice – Making It Practical!

Lots of posts on “unbundling” recently. There seems to be (dare I say it) a movement in support of new business models for the delivery of legal services – including unbundling. By now we are familiar with the (long) list of benefits to the public, lawyers, courts and judges (1). But how can lawyers begin to shift their practices in this direction? I have two new practical tools to share with you:

  • An Unbundling Toolkit for Lawyers and Paralegals (version 1.0); and
  • The BC Family Unbundling Roster

The Toolkit version 1.0

During the surveys and interviews with family lawyers and . . . [more]

Posted in: Dispute Resolution

Delay in Adjudicator Appointments: Crisis, What Crisis?

In 2016, there was a small flurry of concern about the delays in appointments of judges by the federal government. In early December, the Ontario Auditor General highlighted delays in the appointments of Order in Council appointees (adjudicative, regulatory and advisory positions) of up to 16 months. This did not receive much, if any, media attention. The impacts on the administration of justice and on access to justice as a result of delays in appointing of adjudicators can be significant.

There are 3,647 appointees in Ontario (as of July 2016). Of these, there are 47 adjudicative and regulatory entities that . . . [more]

Posted in: Dispute Resolution

The Science of Bad Decisions

Freakonomics, is one of my favourite series of books, blogs and audio podcasts. As the authors proclaim, they look at “the hidden side of everything.”

So imagine my delight when I found a recent podcast that examined how decisions by adjudicators (baseball umpires, judges and bank loan officers) can be affected by totally random factors such as the the order in which they are made and time of day.

The problem is, people don’t really understand randomness. They understand that, if you flip a coin, the odds of landing heads or tails are 50/50. This means that, out of . . . [more]

Posted in: Dispute Resolution

Recognizing That Handwritten Signatures Are a Weak Form of Authentication

Since its inception, the Cyberjustice Laboratory has studied every element and step of the legal process to see if and when technology could be used to facilitate, enhance, or even streamline procedures and, therefore, make the system more accessible and efficient. We are well aware that efficiency is often misconstrued as a “bad word” within the context of the legal system since (especially in criminal proceedings) cutting corners to speed up the process could have disastrous effects. However, managing resources and staff in a more efficient manner, while positively affecting delays, has little to do with the integrity of the . . . [more]

Posted in: Dispute Resolution

Complexity and Mediation Converge

To address conflict it is important to select the process and style that best suits the nature of the problem and the needs of the parties. I have just realized that there is another dimension to this analysis – complexity theory! I love finding writings that bring together two of my current passions: complex system change and mediation. The most recent piece is a compelling article by Greg Rooney entitled “Applying Cynefin Complexity Theory to Mediation”.

First, a bit about Cynefin (how do you pronounce that anyway?). Chris Corrigan teaches the Cynefin Framework for strategy and decision-making, leadership and . . . [more]

Posted in: Dispute Resolution

Life After Adjudication: Should There Be Restrictions on Employment?

Adjudicators can find, through no fault of their own, that their adjudication career is over. Either a government decides not to reappoint or there are term limits in place. Through either choice or necessity, a former adjudicator may return to being an advocate. Recent discussions about restrictions on former judges practicing law serve as a useful framework for a discussion on appropriate restrictions on former adjudicators.

In 2011, a group of Canadian law professors wrote to the Federation of Law Societies of Canada (FLSC) to raise concerns about the post-judicial activities of judges:

…numerous issues have arisen regarding judges’ actions

. . . [more]
Posted in: Dispute Resolution