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Archive for the ‘Dispute Resolution’ Columns

Enhancing Access to Justice by Combining Unbundled Legal Services and Mediation

In my last Slaw post I explored how lawyers can assist their clients through effective mediation advocacy and by providing mediation coaching. In this post, I would like to explore another combination of legal services and mediation that has enormous potential to create affordable and accessible dispute resolution opportunities for clients.

Unbundling (or limited scope representation as it is commonly referred to in the U.S.) is becoming more recognized and highlighted as a key tool to increase access to justice, particularly for those who do not qualify for legal aid services but cannot afford full representation (the CBA, NAC . . . [more]

Posted in: Dispute Resolution

CETA and ODR: Facilitating Trade Through Online Dispute Resolution

Unless you’ve been completely disconnected from international economic news, you’ve heard about the fact that, for four years now, Canada and the European Union have been negotiating “the Comprehensive Economic and Trade Agreement (CETA) in order to bring their trade and investment relationship to a new level”. As explained on the EU’s website:

CETA will cover the key issues relevant to a modern trade and investment environment, from ambitious new market access opportunities to clear rules for European and Canadian traders and investors.

Of course, one of the key issues relevant to a modern trade environment (or . . . [more]

Posted in: Dispute Resolution

Drafting Arbitration Clauses

Over the years I have seen dozens of contracts with dreadful arbitration clauses.

They are generally found near the end of the agreement, with the other so-called “boilerplate”. One often wonders whether the lawyers even read them before the contract was signed. Almost certainly, the business people didn’t. One consequence of this neglect is that, if and when the clause must be dusted off and used in a dispute, it may not work as intended. And unworkable arbitration clauses tend to give the process as a whole a bad name.

There are 7 essential elements of an effective arbitration clause. . . . [more]

Posted in: Dispute Resolution

Expanding Access to Justice and the Lawyer’s Role Through Mediation Coaching

There is considerable discussion these days about how the legal community can help to increase access to justice for Canadian citizens. We know that mediation is a valuable tool to that end but I wonder whether lawyers are recognizing its full potential or, in some cases, shortchanging its benefits.

While this may not be entirely “new”, this post encourages lawyers to amplify the role that they play in choosing and using mediation.

There are increasing opportunities for lawyers to participate in mediation, not in a mediator role but in a counsel or advocacy role, all of which support increased access . . . [more]

Posted in: Dispute Resolution

Privacy and an Open Administrative Justice System

“What’s in a name? That which we call a rose by any other name would smell as sweet,” wrote Shakespeare in Romeo and Juliet. But there is plenty in a name, as J.K. Rowling discovered when her authorship of a pseudonymous mystery novel was revealed (sales shot up dramatically). Of course, her name is attached to a good reputation. Socrates said you should regard “your good name as the richest jewel you can possibly be possessed of – for credit is like fire; when once you have kindled it you may easily preserve it, but if you once extinguish it, . . . [more]

Posted in: Dispute Resolution

“Effective Practices” for Resolution of Intellectual Property Disputes

There is a perceived reluctance to use private dispute resolution (either mediation or arbitration) to resolve intellectual property (IP) disputes.

One reason is that IP rights (patents, trademarks and copyright) are statutory monopolies, granted on a national basis. Therefore, rights holders must look to government authorities and national courts to establish and enforce these rights.

However, the most valuable IP rights are commercialized internationally, so national enforcement and dispute resolution is very costly, time-consuming and inefficient. IP litigation is also public and potentially fatal to confidential information and trade secrets. That’s why there is a compelling case for both owners . . . [more]

Posted in: Dispute Resolution

The European Regulation on Consumer Online Dispute Resolution – Where Are We Now?

As mentioned in a previous post, the Cyberjustice Laboratory was proud to host the 2013 ODR Forum, which took place on June 17th and 18th in Montreal, Quebec. Among the issues addressed by our panelists and esteemed guests during those two days was that of the European Regulation on consumer ODR, a document that is seen as both a step in the right direction and a source of great confusion. If most in the ODR community welcome the document, general consensus also seems to be that important details remain to be incorporated for it to be implementable since it . . . [more]

Posted in: Dispute Resolution

Triage – a Vital Tool to Increase Access to Justice

“Triage” is a very popular word these days in the context of civil justice reform. It was raised in:

  • the CBA’s Envisioning Equal Justice Summit in April as one of the possible solutions to ensuring that citizens have access to justice
  • the final report of the National Action Committee on Access to Justice’s Prevention, Triage and Referral Working Group
  • the Opening the Dialogue session on the phenomenon of self represented litigants in May

“Triage” is a popular concept but what, exactly, does it mean? I have a feeling that it may mean slightly different things to different people.

Merriam Webster . . . [more]

Posted in: Dispute Resolution

Requests to Postpone and Adjourn: Balancing Fairness and Efficiency

Like excuses for not doing homework every adjudicator has seen a variety of requests for a postponement or adjournment of a hearing. In a recent case in the U.S., the lawyer for the accused in a criminal trial asked for an adjournment to attend an Ernest Hemingway lookalike contest. In denying the request, the judge wrote:

Between a murder-for-hire trial and an annual look-alike contest, surely Hemingway, a perfervid admirer of “grace under pressure,” would choose the trial.

At his most robust, Hemingway exemplified the intrepid defense lawyer:

He works like hell, and through it. . . . He

. . . [more]

Posted in: Dispute Resolution

“What if They Get It Wrong?”

One of the fears we often hear from business people and lawyers who are reluctant to put “final and binding” arbitration clauses in contracts is: “What if the arbitrator gets it wrong?”

The recent decision of the British Columbia Court of Appeal in Creston Moly Corp. v. Sattva Capital Corp., 2012 BCCA 329 (CanLII) offers an object lesson in how the courts may still be too eager to review arbitration decisions and may even get the result “wrong” in situations where the arbitrator actually “got it right”.

The case involved a dispute over the payment of a finder’s fee in . . . [more]

Posted in: Dispute Resolution

Are UNCITRAL’s Draft Procedural Rules for ODR Doomed to Fail?

By the time this column is posted, UNCITRAL’s Working Group III, the group charged with the drafting of procedural rules for business-to-consumer online dispute resolution (ODR) services, will be meeting in New-York city for its 27th session, the 6th session dealing with the drafting of said rules (previous sessions dealt with transport and shipping legislation). Ourselves, and others (mainly John Gregory), have reported and commented on these rules on multiple prior occasions, but as time goes on, the major question surrounding said rules is less and less “what should they say”, and more and more “why bother”. At least, those . . . [more]

Posted in: Dispute Resolution

Mediating at a Distance: Will We Embrace the Challenge of Technology?

In his new book “Tomorrow’s Lawyer”, Richard Susskind claims that there are at least 13 “disruptive technologies” in law. A “disruptive technology” is one that fundamentally challenges and changes the functioning of a firm or sector (as opposed to supporting and enhancing current operational methods). He predicts that collectively these 13 technologies will transform the entire legal landscape.

He includes “online dispute resolution” or ODR in this group. He uses a very broad definition of ODR:

When the process of actually resolving a legal dispute, especially the formulation of the solution, is entirely or largely conducted across the

. . . [more]

Posted in: Dispute Resolution