Many business leaders and in-house counsel say that they strongly prefer alternatives to litigation. So why is litigation still the default process for most commercial disputes?

My previous Slaw column looked at the question of whether lawyers are “hijacking” mediation and arbitration. I speculated that one of the problems may simply be that lawyers are risk-averse. This leads them to follow the well-trodden path of litigation, rather than exploring less well-known alternatives.

Some recent research may shed light on the apparent disconnect between the dispute resolution parties say they want and what they actually do.

Pre-empting and Resolving Technology, Media . . . [more]

“Asking the right questions takes as much skill as giving the right answers.” – Robert Half

Lawyers are taught to be experts; having the right answer is a fundamental part of our role. But what did we learn about asking the right questions?

I don’t recall learning very much in law school about how to ask good questions. We learned about the difference between closed, open and leading questions. Closed questions required a yes/no answer; leading questions suggested the (desired) answer.

The clear implication was to avoid the truly “open” questions. In fact, we were taught never to ask a . . . [more]

Having recently left the practice of law to devote my time exclusively to mediation and arbitration (with some teaching and writing on the side), I was intrigued when my ADR friend and colleague Colm Brannigan posted a link to a recent LinkedIn blog that asks: “Have Lawyers Hijacked the Promise of Mediation?”

Author Max Kimber, an Australian mediator and barrister, says it’s time to re-visit the the role of lawyers in mediation, both as representatives of the parties in that process and as mediators.

The same may be said of arbitration, I think.

Kimber talks about the “promise of mediation” . . . [more]

In the aftermath of the first wave of “attacks” using WanaCrypt0r 2.0, a variant of the WanaCry ransomware that started infecting systems around the world, most notably the British National Health Service, on May 12^th, 2017, comment boards and blogs have been abuzz with statements regarding the risks of a overly digitalized world. For those who caution against the implementation of technological solutions within the legal system, this attack only serves as another example as to why, in their minds, our paper-based system is still the safest way to manage legal files.

As reports show, they might . . . [more]

Forget the business attire, forget the hearing room, and forget regular business hours. The future may even be dispute resolution in your pyjamas. Necessity being the mother of invention, an increasing need for better access to justice and the means for delivering it means that your home computer, laptop, or mobile device can serve as the place where disputes are resolved.

In Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854 at para. 10, Lamer CJ noted that the rise of the administrative state has been marked by the creation of institutions other than the courts. While Lamer . . . [more]

“Fresh justice is the sweetest”, Sir Francis Bacon, 1618

“..we may look forward to a near future when our courts will be swift and certain agents of Justice”, Dean Roscoe Pound, 1906

“Our system…has come to tolerate excessive delays”, SCC majority in R. v. Jordan, 2016

Delay in court or tribunal proceedings has been an issue at least since the Magna Carta of 1215, when King John promised that “to no man will we sell, to no man deny, or delay right or justice”. Over 800 years later, the Supreme Court of Canada has revisited the issue of delay . . . [more]

The justice system (and the court system in particular) is complex and can be very confusing and intimidating for people. Access to justice efforts are focusing on ways to alleviate these pressures. Progress is slow but determined with some hopeful glimpses of progress.

What continues to disturb me are the surprisingly frequent references to both clients and self-represented litigants (“SRLs”) as “difficult” or “obsessive” or suffering from mental health challenges. [Note 1] A recent example is the current series from Lawpro on “Dealing with the Difficult Client”. Part 3 (March 23, 2017) focuses on “the obsessed client” described as “the . . . [more]

As most lawyers would agree, few recent court cases have had the impact of last year’s Supreme Court decision in R. v. Jordan. A quick look at the CanLII website tells us that it has already been cited in over 200 other decisions in the 8 months since it was rendered and many court administrators have been tasked with finding new ways to comply with its teachings.

As a reminder, the decision affirmed, among other things, that:

[49] The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For . . . [more]

The International Chamber of Commerce has adopted amendments to its Rules of Arbitration, along with a new, consolidated version of its Note to Parties and Arbitral Tribunals.

These Rules and guidelines are obviously important for international arbitration, but they may provide useful guidance on good practice for ad hoc and administered arbitrations in Canada as well.

The amended ICC Rules came into force on March 1, 2017.

The most significant changes relate to the Expedited Procedure Rules (Article 30 and Appendix VI) which will now be the default rules for claims under USD 2 million, and may also . . . [more]

I keep a folder with blog post ideas. Sometimes it is hard to choose which topic to focus on for my Slaw column. Not this time.

Professor John Lande’s column on February 12th recommended (commanded?) readers to find and read Noam Ebner’s recent article entitled Negotiation is Changing. Never one to ignore a recommendation from one of my conflict management heroes, I downloaded and read the article. It is fascinating and thought-provoking. I heartily urge anyone involved in negotiation to do the same. I use that phrase in its widest sense to include the legal profession, the conflict resolution/management . . . [more]

The telephone is old technology. Recent reports have shown that speaking by phone may be on the way out. However, the telephone is still an important part of the toolkit for tribunals in ensuring access to justice. Videoconferencing is the (relatively) new flavour in administrative justice, but we shouldn’t lose sight of the telephone as an accessible and technologically easier tool.

A recent Ontario Divisional Court decision has highlighted the advantages of teleconference hearings: “[a teleconference hearing] can be a useful tool for Tribunals to have to hold hearings fairly and expeditiously, especially given the size of this Province”. . . . [more]

Ever since we started this regular column back in 2012, we’ve been defending a basic thesis: for consumer online dispute resolution (ODR) to succeed, it needs to be publicly funded and retailers need to be given a clear incentive to take part. This is the thesis we aimed to test when, on October 7^th of 2016, the Cyberjustice Laboratory (the “Lab”), in collaboration with Quebec’ consumer protection agency (the Office de la protection du consommateur or “OPC”), and the ministère de la Justice du Québec, decided to launched a pilot project around the Lab’s Platform to Assist in . . . [more]