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Archive for the ‘Dispute Resolution’ Columns

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

The Use of Artificial Intelligence to Facilitate Settlements Through ODR

Fellow Slaw columnist Omar Ha-Redeye recently wrote a blog entry on how artificial intelligence is making its way into the Canadian legal community more slowly that expected (by some) due to the fact that the data repositories that are behind SOQUIJ, CanLII, and other caselaw search engines are simply too limited in size to allow for true predictive capacities. In other words, there are too few decisions to generate reliable trends that can be identified through A.I. This has pushed Mr. Ha-Redeye to question how successful and useful a tool like Premonition will be on the Canadian market. . . . [more]

Posted in: Dispute Resolution

Negotiating Advice From the Rolling Stones

You can’t always get what you want
But if you try sometimes you just might find
You get what you need
– Rolling Stones

I teach a negotiation course several times a year at the University of Toronto School of Continuing Studies. I am always surprised at the number of students who come into the course thinking that being a successful negotiator is all about “winning” – getting what they want.

My hope is, by the end of the course, they have learned that truly successful negotiation is about finding a way for both (all) parties to get what they . . . [more]

Posted in: Dispute Resolution

Tribunals Consulting With Stakeholders: The Rewards and Risks

Over the summer news broke about a meeting of National Energy Board (NEB) members and stakeholders in 2015, where the Energy East pipeline was discussed. Initially, the NEB stated that they had met with former Quebec premier, Jean Charest, to seek his political advice. Mr. Charest was a consultant to TransCanada (the pipeline company). An access to information request revealed that the pipeline proposal was included in the discussion and the NEB changed its story, blaming a memory lapse.

A Montreal Gazette editorial had strong words for the NEB: “this oversight will only stoke the suspicion of skeptics who fear . . . [more]

Posted in: Dispute Resolution

Dispute Resolution Professionals – Justice Reform Needs You!!

“For good ideas and true innovation, you need human interaction, conflict, argument, debate.” 

Margaret Heffernan

These are exciting times. There is a building momentum towards justice reform to improve access to justice in Canada and abroad. Many people are coming forward to join the movement including skilled members of the legal profession, Judiciary and government. Increasingly, reform efforts are also involving users in recognition of the need to design a user-centred justice system.

I find it curious that so many of the new reformers are also skilled conflict management practitioners, including mediators. Just as one example, the BC Family Justice . . . [more]

Posted in: Dispute Resolution

Identifying E-Filers Through Strict Security Measures: Why?

[Sarit Mizrhi assisted in the preparation of this column.]

As discussed abundantly in previous posts, numerous court systems worldwide have begun harnessing the power of modern technology in general (and online dispute resolution (ODR) mechanisms in particular) due to the many benefits it stands to offer to the judiciary. Essentially, information and communications technologies have proven to enhance court performance in several manners, such as by reducing trial delays, increasing the efficiency of the judicial system and thus ultimately access to justice, as well as increasing the level of confidence that citizens have in the legal system. As is well . . . [more]

Posted in: Dispute Resolution

Cost Consequences of a Failure to Mediate

A recent Wednesday: What’s Hot on CanLII drew my attention to an interesting decision of the Ontario Superior Court of Justice on the scope of a defendant’s obligation to mediate in a meaningful way – and the potential cost consequences of the failure to do so. The case also yet another example of the limits on the confidentiality of the mediation process.

In Dimopoulos v Mustafa, 2016 ONSC 4119 (CanLII), the Court dealt with several issues arising from an accident victim’s successful claim for damages under the Insurance Act. A jury awarded $37,000 in general damages, plus $28,800 in . . . [more]

Posted in: Dispute Resolution

Mentoring for Adjudicators: The Need for Guidelines

There is no perfect training for any occupation. Guidance from more experienced people is always necessary when developing a new career. This is particularly so for new adjudicators. Training on how to run a hearing is commonly offered to new adjudicators. Even with simulations, that training does not equip adjudicators with everything they need to survive (or, better yet, thrive) in adjudicating.

Mentorship is ideally suited for the development of new adjudicators. A mentor is a more experienced adjudicator who shares his or her perspective with a less experienced adjudicator. Mentor was an Ithacan noble in Homer’s Odyssey. A trusted . . . [more]

Posted in: Dispute Resolution

The “Combo” of Human Touch and Technology

Most ADR practitioners know of the contributions of Carrie Menkel-Meadow [Note 1] to the conflict resolution field. She is a “founder” of the US “ADR” movement and continues to deepen and strengthen our global understanding of the field.

Professor Menkel-Meadow attended the 15th ODR (Online Dispute Resolution) Conference in the Hague in May 2016 and published a helpful commentary on her experience comparing ODR with ADR [Note 2]. She began by suggesting that the modern “ADR movement” grew for three main reasons:

First, what I call ‘quantitative’ ADR – for cheaper, faster and more efficient docket clearing from

. . . [more]
Posted in: Dispute Resolution

Does eAccess to Court Records Infringe on Copyrights?

The 15th annual ODR conference, which took place in The Hague. on May 23rd and 24th 2016, addressed the very a propos topic that is: “Can ODR Really Help Courts and Improve Access to Justice?” As we’ve discussed in previous posts, more and more courts (e.g. British Columbia’s Civil Resolution Tribunal, tribunals (e.g. Ontario’s proposed online Administrative Monetary Penalty System), and other public bodies are incorporating online dispute resolution tools, mechanisms, and practices into their processes.

Of course, incorporating ODR mechanisms into a Court or a tribunal’s processes implies that said court or . . . [more]

Posted in: Dispute Resolution

The Role of Arbitrator Disclosure in International Arbitration

There is a very natural human tendency to claim the game is rigged when one loses.

“The referee was obviously biased against us,” the coach says, explaining the team’s loss.

Donald Trump kept complaining that the Republican Party primary rules were rigged against him, even though he was winning.

So, too, in arbitration, when the losing party seeks to overturn an unfavourable award. This is particularly evident in international arbitration, where there is no right of appeal. Also, in some domestic arbitration cases, where appeals are increasingly limited.

In these situations, lack of jurisdiction or arbitrator bias may be the . . . [more]

Posted in: Dispute Resolution