The open court principle has repeatedly been confirmed by the Supreme Court as a “hallmark of a democratic society” (Vancouver Sun,  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]
Archive for the ‘Dispute Resolution’ Columns
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]
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]
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]
You only get one chance to make a first impression, as the saying goes. A recent study has confirmed that first impressions are persistent and can be difficult to overcome. The opening statement of the adjudicator and of the parties at the beginning of a hearing is that first impression and will often set the tone for the entire proceeding.
In crafting any communication, the first question to answer is, "who is your audience?" In many cases there are primary and secondary audiences. For an adjudicator, the primary audience is the parties to the dispute. The secondary audience for the . . . [more]
The Most Successful Court Mediators Are Not Necessarily Lawyers – and Other Findings From the Court Mediation Program
Mediation is gaining popularity in Canada but promotion of mediation is still mostly anecdotal. To develop further, the field needs a more solid foundation of deep empirical research. Mediate BC is attempting to fill some of the gaps based on fourteen years of data collection by its Court Mediation Program (the "CMP"). The CMP has administered the mediation program in the Provincial Court of BC, Small Claims Division, since 1998 and now mediates claims up to $25,000 in Vancouver and up to $10,000 in four other locations. The CMP recently celebrated its 20,000th referral! It has thousands of mediations . . . [more]
The federal government has announced proposed regulations that will allow banks to opt out of a national customer ombudsman service in favour of private ADR services that they will choose and pay for.
This seems like a bad idea.
If banks can simply shop around for another ADR service provider whenever they are unhappy with the decisions of the current provider, how can consumers and small businesses have any confidence in the integrity and impartiality of decisions?
The Ombudsman for Banking Services and Investments (OBSI) currently has more than 600 participating firms including banks, credit unions, trust and loan companies, . . . [more]
[Sean Dwyer assisted in the preparation of this column.]
Like many others, we have, on this blog and elsewhere, claimed that online dispute resolution (ODR) platforms and processes constitute an extremely useful tool for conflict resolution. This being said, it is unfortunately possible to assert that a majority of attempts to create a system for ODR have fallen short of expectations, making our assertions seem somewhat difficult to defend. However, we remain convinced that the fault doesn’t lie with the technology or the concept, but rather that ODR’s failure is in large part due to the absence of obligation . . . [more]
Some tribunals routinely tape record proceedings while others consistently prohibit it. And within those tribunals that allow tape recording of proceedings, practices on the use of the tape or transcript also vary. It is pretty clear in law that administrative tribunals are not required to record the proceedings, unless required to do so by statute: Canadian Union of Public Employees, Local 301 v. Montreal (City),  1 S.C.R. 793
Administrative tribunals were designed to be less formal than courts, yet the recording of proceedings is a hallmark of the judicial process. Why do some tribunals routinely tape proceedings and . . . [more]
Much has been written about apologies and how they can be effective in resolving conflict. However, two recent events spurred me to tackle this important topic once again and identify lessons that apply to conflict resolution.
First, I listened to a terrific podcast of the CBC radio program "Under the Influence" with Terry O'Reilly. He is a master storyteller and devoted this episode of his terrific series to corporate apologies used by corporations strategically as part of a public relations plan to redeem themselves in the eyes of their public. He described four specific situations in which corporations (Johnson & . . . [more]
When my daughters sailed on the tall ships for several summers, the crew had a daily activity called “mandatory fun.” It seems like an oxymoron until you think about it a bit. If you tell people they’re going to have fun, they do.
If you tell people they have to try to resolve their disputes, or else… — they will.
I have had many “full and frank discussions” (a very useful diplomatic euphemism) with fellow commercial lawyers about whether to include mandatory mediation clauses in business agreements.
Those who are vehemently against the idea insist that forced mediation doesn’t work. . . . [more]
We were recently asked to contribute a chapter on ODR and the Courts to an International treatise on ODR edited by Mohamed S. Abdel Wahab, Ethan Katsh and Daniel Rainey. In researching how Courts could and should use ODR, we were pleasantly surprised to see how many court-run ODR projects are currently being implemented or tested around the World. From the United Kingdom’s Money Claim Online and Possession Claim Online, to Australia’s eCourt to the seemingly defunct Subordinate Courts of Singapore’s eAlternative Dispute Resolution (e@dr) project (the website is no longer online), ODR practices and processes are seeping into the . . . [more]