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Archive for the ‘Dispute Resolution’ Columns

Book Review: Bernie Mayer, “The Conflict Paradox – Seven Dilemmas at the Core of Disputes”

The more conflict escalates, the more human beings tend to characterize the issues as black or white, right or wrong, good or bad. The sad truth is that with more intensity, our thinking becomes less complex and we are less able to see all of the possibilities and to engage effectively. We are attracted to polarities, probably for their simplicity, bit life is not binary – it is complex and full of grey.

In his new book, “The Conflict Paradox – Seven Dilemmas at the Core of Disputes” (2015, Jossey-Bass), Bernie Mayer explores the mystery of this complexity in the . . . [more]

Posted in: Dispute Resolution

Style in Decision Writing: Guidance for Adjudicators

“In matters of grave importance, style, not sincerity, is the vital thing.”

Oscar Wilde

“Originality in the law is viewed with scepticism. It is only the arrogant fool or the truly gifted who will depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy.”

Duncan Webb, ‘Plagiarism: A Threat to Lawyers’ Integrity?’ (2009), International Bar Association

Reasons for decisions are the windows into the decision making process. Reasons should ensure . . . [more]

Posted in: Dispute Resolution

UNCITRAL’s Working Group III on Online Dispute Resolution Is All but Done

Between February 9th and 13th, 2015, the United Nations Commission on International Trade Law’s Working Group III held its 31st session, the 10th session devoted to “the preparation of legal standards on online dispute resolution” (ODR) and, most probably, the last. After close to fifty days of negotiations (over five years), United States and European delegates proposed that the Working Group cease its work on ODR and redirect its resources to projects that had a better chance at reaching a successful outcome since discussions had been at a stalemate for a few sessions. . . . [more]

Posted in: Dispute Resolution

Ontario Joins Wider Move Toward Online Dispute Resolution to Ease Court Burdens

As John Gregory reported in a recent SLAW post, the Ontario government is looking at online dispute resolution (ODR) for a variety of provincial offences. The system could start with minor traffic offences, and be expanded to other provincial and municipal offences, such as parking and by-law violations.

The proposal reflects a growing trend toward ODR for both civil and administrative matters.

The Ontario consultation document notes the high cost of dealing with provincial offences, with about 1.6 million charges laid annually. In Toronto alone, for example, provincial offences courts cost about $50 million a year, plus $5.5 million . . . [more]

Posted in: Dispute Resolution

What Does a “user-centred” Approach Really Mean??

It is common now for those promoting justice reform to urge a “client-centred” or “user-centred” approach. But what does it really mean to take a “user-centred” approach? Is it enough for justice insiders to take their own understanding of the client experience into account or to invite one or more ‘users’ of the system to participate in reform discussions? Just how do we truly obtain the perspective of those using (or wanting to use) the justice system?

Once again, we can look outside our own sector for clues.

Example #1 – Business

The business world has been focusing for hundreds . . . [more]

Posted in: Dispute Resolution

Past Lives and Allegations of Bias

Adjudicators all come from somewhere and sometimes those past lives can intrude on the adjudication process. Parties who raise issues of conflict of interest based on a past role of an adjudicator usually frame that objection as an allegation of an apprehension of bias.

The test for reasonable apprehension of bias is well known. I have written about bias in the context of active adjudication previously. The legal test for a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely . . . [more]

Posted in: Dispute Resolution

ODR to Become the Norm in Quebec?

In all honesty, our title is somewhat (and voluntarily) misleading. There is no clear sign that online dispute resolution is going to be the norm in the near future in Quebec – or anywhere else in Canada for that matter. Even in British-Columbia, where the much talked about Civil Resolution Tribunal should finally launch later this year, it’s doubtful that the judicial process will transfer online for other courts and tribunals any time soon. “Then why the misleading title?”, you may ask. Because recent legislative changes in Quebec have paved the way for ODR service providers to make great strides . . . [more]

Posted in: Dispute Resolution

New Year, New Arbitration Rules

The ADR Institute of Canada has adopted new arbitration rules, which came into effect in December 2014. The new Rules are significant because they apply to any new arbitration commenced under the ADR Institute rules after December 1. Although the Rules are designed mainly for domestic commercial arbitration, they can also be used for international and non-commercial disputes.

First adopted in 2002 to provide a comprehensive set of national arbitration rules, the last major revision of the Rules was in 2008. The new Rules are the product of an in-depth review and broad consultation that began in 2012. This . . . [more]

Posted in: Dispute Resolution

The Enduring Value of the Mediation Skillset

During Conflict Resolution Week in October, Mediate BC Roster mediators made a number of presentations around the province about mediation. We tried to answer the public’s question: “What is Mediation?” That seems like a simple task – it is not.

First, “mediation” is not just one thing. It is a flexible tool that includes a variety of processes. Some practitioners have tried to catalogue the processes and to assign names (interest-based, facilitative, transformative, narrative, evaluative, rights-based, joint, shuttle, etc.). From the perspective of the people in conflict, each of these processes will look very different and the role of the . . . [more]

Posted in: Dispute Resolution

Confidentiality of Mediation and Arbitration

Confidentiality and privacy are often mentioned as advantages of mediation and arbitration over litigation in commercial disputes.

In some cases, of course, the threat of publicity can be a tactical advantage for one party. But, going into an agreement at least, both parties usually have an interest in protecting trade secrets and business goodwill. Even after a dispute arises, private and public-sector organizations may be reluctant to air their disputes in public, for a variety of reasons. So they want any agreed dispute resolution process to be private and confidential.

Recent cases in Canada and elsewhere illustrate the care parties . . . [more]

Posted in: Dispute Resolution

Reasons for Decisions: The Path From Intelligible to Implicit

The writing of reasons for decisions is never easy. Adjudicators must strike the right balance between comprehensiveness and intelligibility. In most cases, adjudicators also have a heavy workload and perfection in reason writing is not possible. There are many readers of an adjudicator’s reasons, but the readers that I will focus on in this column are judges. There has been a sea change in the approach of courts to reasons over the past decade. That change reflects the reality of increased litigation, stagnant or declining resources and an increased focus on efficiency. This has led to a focus on a . . . [more]

Posted in: Dispute Resolution

UNCITRAL’s WGIII on Online Dispute Resolution… a Seemingly Perpetual Tug of War

Between October 20th and 24th, as it does every Autumn, UNCITRAL’s Working group III on Online dispute resolution met to try and finally draft procedural rules for ODR providers. Unlike previous sessions, this year’s was rumoured to be a “make it or break it” meeting. This could be gleaned from the restatement of the directives given to participants in July of 2012 by UNCITRAL:

(a) the Working Group should consider and report back at a future session of the Commission on how the draft rules would respond to the need of developing countries and those facing post-conflict . . . [more]

Posted in: Dispute Resolution