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Archive for the ‘Dispute Resolution’ Columns

Med-Arb: The Adjudication Perspective

“The promise of arbitration is choice, and in order to fulfill that promise, choice must be deliberatively and effectively exercised,” Thomas J. Stipanowich, in Arbitration: the New Litigation.

“I am a firm adherent to the school of thought that denies acceptability of a person who has mediated subsequently filling the role of arbitrator, notwithstanding statutory recognition of this possibility.” Sir Laurence Street, “The Language of Alternative Dispute Resolution” [I992] ADRLJ 144.

Kari Boyle and I are writing columns this month about mediation at adjudication, commonly known as med-arb: she from the mediation perspective and I from the adjudication . . . [more]

Posted in: Dispute Resolution

Med-Arb: From the Mediator Perspective

My Slaw colleague Ian Mackenzie suggested that we each explore the topic of med-arb – I would take the perspective of mediation and Ian the perspective of arbitration. I thought that would be a great way to spur more discussion about this “hot” topic.

When I taught “Introduction to Dispute Resolution” to first year students at UBC Law School a few years ago we spent some time collaboratively constructing the “DR Continuum”. I’m sure most of you are familiar with the linear chart showing dispute resolution processes along a line from “avoidance” on the far left to “war” on . . . [more]

Posted in: Dispute Resolution

Mediator Saves NHL & Players From Themselves

The pivotal role of Scot Beckenbaugh, Deputy Director of the United States Federal Mediation and Conciliation Service, in resolving the 113-day National Hockey League lockout provides an excellent case study in the art of high-stakes mediation.

Published accounts of Beckenbaugh’s role in the final week of make-or-break negotiations illustrate the key attributes that disputing parties should seek in any mediator.

Subject matter expertise:

Beckenbaugh was brought into the negotiations for his mediation skills, not his knowledge of the specific financial issues in dispute. He is not a “hockey guy”. His bio on the FMCS website mentions “extensive experience in public . . . [more]

Posted in: Dispute Resolution

UNCITRAL’s Draft Procedural Rules for Online Dispute Resolution for Cross-Border Electronic Commerce Transactions: Where Are We Now?

Between November 5th and 9th, the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III met for its 26th session, the fifth session dedicated to the drafting of procedural rules for online dispute resolution for cross-border electronic commerce transactions. Those who would need a refresher course on the working group’s agenda and mandate can read John Gregory’s posts from April of 2012 and 2011. As with the previous three sessions of the Working Group, work was to be centered around the “preparation of legal standards on online dispute resolution for cross-border electronic transactions . . . [more]

Posted in: Dispute Resolution

When “Your Day in Court” Does Not Include an Oral Hearing

When a party to a proceeding says that they “want their day in court”, an oral hearing is usually what he or she is contemplating. Just ask Conrad Black: Conrad Black v. The Advisory Council for the Order of Canada, 2012 FC 1234. (For commentary on the other aspects of the decision, see here and here.

However, in most cases there is no automatic right to an oral hearing. Procedural fairness does not require an oral hearing in all circumstances. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court stated . . . [more]

Posted in: Dispute Resolution

You Want Your Day in Court? Time for a Reality Check!

How many times have we heard a person exclaim, “I just want my day in court!”? Often, this is in response to what that person considers to be an insulting settlement proposal or as a result of frustration over delays in resolving a conflict.

Just what does that person mean by their “day in court”? I suggest that it is not as simple as we might think. The phrase “day in court” conjures up different mental images depending on one’s background and the situation.

The traditional definition focuses on a person’s right to be heard in a court hearing or . . . [more]

Posted in: Dispute Resolution

Will UNCITRAL Online Dispute Resolution Rules Work for Consumers?

The United Nations working group for online dispute resolution (ODR) of cross-border electronic commerce transactions (UNCITRAL Working Group III) met in Vienna early in November to continue its work on procedural rules for ODR. This effort has been underway since 2010 and should be nearing completion, but the approach taken by the working group has drawn some criticism from those concerned that its focus is too narrow and its proposed rules will be ineffective.

Professor Vikki Rogers, Director of the Pace Institute of International Commercial Law, one of the facilitators of the 2010 colloquium that put ODR on the UNCITRAL . . . [more]

Posted in: Dispute Resolution

A Comment on “Party Autonomy and Access to Justice in the UNCITRAL Online Dispute Resolution Project”

As we are writing these lines, the United Nations Commission on International Trade Law’s (UNCITRAL) working group III is meeting in Vienna to continue its work on online dispute resolution (ODR) or, rather, on establishing guidelines for potential ODR service providers. Since previously scheduled obligations have kept us from taking part in this year’s meeting, we’ll have to wait for feedback from other participants to comment on how things are moving forward.

In the meantime, however, those who wish to get a broader picture of the UNCITRAL negotiations and their potential impact are in luck since Professor Ronald A. . . . [more]

Posted in: Dispute Resolution

The Exclusion of Witnesses: Redundant in a Wired World?

The open court principle has repeatedly been confirmed by the Supreme Court as a “hallmark of a democratic society” (Vancouver Sun, [2004] 2 S.C.R. 332, at para. 23), most recently in A.B. v. Bragg Communications Inc., 2012 SCC 46. However, the exclusion of witnesses from a hearing is a routine exception to this principle. In this column I will explore some of the history of the exclusion of witness order, its purpose, the exceptions and consequences of a breach. The larger question that I will address is whether we can sustain an exclusionary rule in an age . . . [more]

Posted in: Dispute Resolution

Should We Take the “Resolution” Out of Conflict Resolution?

I had the privilege of attending Bernard Mayer’s two day workshop on Vancouver Island last month. Bernie is one of the pioneers and visionaries in the conflict resolution field and his two most recent books (Beyond Neutrality and Staying with Conflict) have transformed my understanding of the field and the roles of people who work within it.

The workshop focused on what Bernie calls “enduring conflict”, conflicts that have a significant enduring element. They are typically:

  • deeply rooted
  • identify based
  • value driven
  • embedded in structure
  • systemic and complex

Bernie points out that enduring conflicts will not be “resolved” . . . [more]

Posted in: Dispute Resolution

Don’t Be Afraid of ODR

Although ODR is gathering much support among consumer associations, governments, and private enterprise, lawyers and members of the judiciary seem to be the most outspoken critics of the use of technology to help litigants reach an otherwise unassisted settlement. If cynics like to point to the fact that those in the legal community might simply be afraid to lose their monopoly on brokering settlements and, therefore, their jobs, we believe that this isn’t the case, but rather that their reservations are linked to an unfounded fear that ODR might contribute to the erosion of the rule of law.

For example, . . . [more]

Posted in: Dispute Resolution

Apple v. Samsung — Who’s the Big Loser Here?

The worldwide patent litigation between Apple Corporation and Samsung Electronics is a perfect illustration of the “lose-lose” nature of high-stakes IP litigation.

While the headlines have focused on the $1 billion U.S. jury award Apple won at the end of August, in the long run Apple may turn out to have been a loser in this struggle as well.

Some brief history.

Apple and Samsung are long-time business partners. Samsung holds many patents on touch screen technology. It supplied screens for the iPod and iPhone. Samsung still makes the touch screen for Apple’s iPad tablet computers. It won the contract . . . [more]

Posted in: Dispute Resolution