“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]
Archive for the ‘Dispute Resolution’ Columns
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]
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]
“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]
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]
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]
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]
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]
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]
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]
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 Cyberjustice Laboratory . . . [more]
“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]