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Archive for the ‘Dispute Resolution’ Columns

Literacy and Access to Administrative Justice

Last week the Canadian Bar Association held a summit on access to justice in Vancouver. I spoke on active adjudication as a tool to enhance access to justice. My co-presenter, Darin Thompson, spoke about online dispute resolution. In preparing for my presentation, I was reflecting on the skills or aptitudes that disputants bring to the justice process. It is nearly impossible to provide individualized responses to all of the parties that appear before tribunals, however, it is crucial that tribunals have at least a sense of the needs of the community that it serves. In this column, I will focus . . . [more]

Posted in: Dispute Resolution

“Project Umpire” — Alternative Approach to Governance of Complex Projects

As winter turns to spring and hockey gives way to baseball and soccer, I can’t help but think about the role of referees and umpires and wonder why we don’t use them more for commercial dispute resolution.

Every competitive sport needs a referee or umpire. Even in recreational leagues, players know there will be disputed plays, broken rules and conflicts.

Business is highly competitive. Technology projects, in particular, need on-the-spot umpires who can make calls quickly and settle conflicts efficiently.

Contracts for large, complex projects typically require disputes to be escalated to senior executives or a project steering committee before . . . [more]

Posted in: Dispute Resolution

The 2013 International ODR Forum Is Coming to Montreal

Considering a recent announcement that the European Parliament voted, on March 12th, to go forward with the development of an EU-wide online dispute resolution (ODR) platform, and that said platform “will be operational at the end of 2015”, it seems that ODR is poised to reach new heights in the next few years.

What this entails for the legal community and how this and other initiatives will impact traditional legal structures are therefore topics that need to be addressed shortly if lawyers want to adapt their practice to this emerging trend.

This is why the Université de Montréal’s . . . [more]

Posted in: Dispute Resolution

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