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Archive for the ‘Dispute Resolution’ Columns

Effective Negotiation Strategy Is an Essential Element of Litigation

Negotiation theory is generally based on two models of negotiation:

- positional negotiation, which includes terms such as “distributive,” “competitive” and/or “adversarial,” bargaining

- interest-based negotiation, which includes terms such as “integrative,” “problem-solving,” or “cooperative problem-solving,” or “collaborative” bargaining

Prof. John Lande, of the University of Missouri School of Law’s Center for the Study of Dispute Resolution, also theorizes a third model, which he calls “ordinary legal negotiation”, which is a hybrid based on norms that develop in certain practice areas, geographical regions or under specific court or ethical rules.

In a pair of forthcoming articles in the Cardozo Journal . . . [more]

Posted in: Dispute Resolution

Public ODR… Could There Really Be Such a Thing?

In one of our earliest blogs, we suggested that, if we want Online Dispute Resolution (ODR) to flourish, it should somehow be incorporated into the judicial process. This is not to say that private ODR mechanisms are doomed to fail, but rather that, as many unsuccessful ODR experiments have demonstrated, the incentives to take part in private ODR mechanisms are often lacking, especially with regard to consumer contracts. Other than places like eBay, where refusal to take part in the platform’s dispute resolution process results in exclusion from the community, there is no real reason for merchants to take . . . [more]

Posted in: Dispute Resolution

Learning From Our Neighbours – the Honoring Families Initiative

Slaw has been a great source of information about a wide variety of creative initiatives to address the need to improve access to justice and bridge the implementation gap. I believe we need to proceed on at least two tracks simultaneously:

  • seeking out and learning from new and existing initiatives around the world and
  • stepping back to create and experiment with brand new things

My last post on the Social Lab approach encourages this two track approach by encouraging deep research and by creating a “container” within which a variety of different initiatives can be designed, tested, tried, modified in . . . [more]

Posted in: Dispute Resolution

Administrative Justice and Earth Day: The Path to “Green” Fairness

Yesterday was Earth Day — an opportunity to reflect on the impact of administrative justice on our environment and how tribunals can balance fairness, efficiency and environmentally-friendly practices. It’s obvious that the environment is an inter-related system that needs to be looked at holistically. However, the administrative justice system is rarely looked at holistically. The actions of a tribunal have an impact on all the users of a tribunal services (parties and representatives). A tribunal’s rules and procedures create its own “ecosystem” that has the potential to impose both environmental costs and benefits.

Two small examples will serve to illustrate: . . . [more]

Posted in: Dispute Resolution

Teaching ODR… Whose Job Is It?

A few months ago, a subscriber to John Gregory’s listserv (which every IT law enthusiast should subscribe to) sent a message regarding how the impact of IT on the legal profession was being taught (or rather wasn’t being taught) in Universities across the country.

Of course, that very question has preoccupied lawyers and legal scholars alike for two decades with regard to IT law, i.e. whether it should be treated as a subject in and of itself (in which case it usually isn’t a mandatory class, meaning that students can go through law school without hearing the word “Internet” . . . [more]

Posted in: Dispute Resolution

Apple v. Samsung – the Saga Continues

The news, reported in late February, that Apple and Samsung had once again failed to resolve their smartphone patent dispute through mediation did not come as a big surprise. At this writing, the technology giants were preparing to go to trial in California in late March, although there was still some prospect that continuing discussions with the mediator could produce a last minute breakthrough.

Published reports citing court filings stated that company executives met with the mediator in a full-day session, followed by a number of phone calls, without success.

The background of this dispute includes significant wins by Apple . . . [more]

Posted in: Dispute Resolution

The Supreme Court on Summary Hearings: The Implications for Administrative Tribunals

The recent decision of the Supreme Court on summary hearings in the courts has sparked discussion within civil litigation circles, including on But what, if anything, does the decision tell us about the court’s possible approach to summary processes in the administrative justice system?

The court appears to be open to new models of adjudication:

[t]he balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

The court also noted the importance of public adjudication of disputes for the development . . . [more]

Posted in: Dispute Resolution

The Social Lab: a Bridge Over the Implementation Gap for Justice Reform?

Justice reform is a hot topic in Canada these days. In particular, we have the benefit of the CBA’s Envisioning Equal Justice Summit and report and the final report of the National Action Committee on Access to Justice in Civil and Family matters. These follow a long series of reports federally and provincially that include many of the same recommendations for change including BC’s Civil Justice Reform Working group report and the CBA’s 1996 report. In fact, in 1919 Reginald H. Smith identified delay, court costs and fees and the expense of counsel as the three primary defects in the . . . [more]

Posted in: Dispute Resolution

Assessing an Arbitrator’s “Predilection for Bias”

Arbitrator independence and fairness are the cornerstones of arbitration. They seem to be coming under greater scrutiny, both in Canada and abroad.

There are many sources of bias in any adjudication system, whether it is court or arbitration. (This may be a topic for another column, but see for example arbitrator Edna Sussman’s paper, “Arbitrator Decision Making: Unconscious Psychological Influences and What You Can Do About Them,” December 20, 2013, American Review of International Arbitration, Vol., No. 3, 2013 available online here.)

The accepted test for arbitrator bias in Canada was established by the Supreme Court of . . . [more]

Posted in: Dispute Resolution

“Low-Value, High-Volume” Disputes: Defining the Indefinable

Since 2010, those of us in the online dispute resolution (ODR) community have usually either ended the year or begun the new one reading reports from the November session of the United Nations Commission on International Trade Law’s (UNCITRAL) Working group on online dispute resolution (Working group III or WG3) to see what – if any – strides have been made since the preceding Summer session. We (and others) have discussed at great length the work being done by this working group and have even expressed our doubts as to whether said work would ultimately be useful . . . [more]

Posted in: Dispute Resolution

Active Adjudication and Impartiality

Access to justice should not stop at the hearing room door. Much of the current discussion of access to justice has focused on getting people into the justice system, with little discussion of how to make justice accessible once they get there. In a justice system that increasingly has self-represented parties as well as unequal representation, fairness and efficiency require that adjudicators take a more hands-on role in the hearing process. This hands-on approach has been termed “active adjudication” by commentators and adjudicators.

There are a great variety of adjudicative tribunals in Canada, all with different rules and approaches to . . . [more]

Posted in: Dispute Resolution

The Public / Legal Profession Divide in Access to Justice

We need to change our primary focus. Too often, we focus inward on how the system operates from the point of view of those who work in it. ….. The focus must be on the people who need to use the system. … Litigants, and particularly self-represented litigants, are not, as they are too often seen, an inconvenience; they are why the system exists. … Until we involve those who use the system in the reform process, the system will not really work for those who use it.
National Action Committee on Access to Justice in Civil and Family Matters, . . . [more]

Posted in: Dispute Resolution