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Archive for the ‘Dispute Resolution’ Columns

Are Hybrid in-Person and Virtual ADR Proceedings the New Normal?

As we (fingers crossed) emerge from the COVID pandemic over the coming months, one of the things we will ponder is how much we want go back to in-person mediation, arbitration and other proceedings.

There will always be many advantage to meeting face-to-face. The personal connection does help facilitate discussion and settlement of disputes. It is also an advantage for adjudicators to see and hear counsel and witnesses in the flesh.

But online tools have improved a lot in the past 18 months. So has our comfort level using those tools, many of which have been around much longer. How . . . [more]

Posted in: Dispute Resolution

The Open Court Principle and Privacy: A New Frontier?

To make clear the necessity of privacy as a context for respect, love, friendship and trust is to bring out also why a threat to privacy seems to threaten our very integrity as persons. …

Charles Fried, “Privacy,” (1968) 77:3 Yale Law Journal 475–493

Article 1: Human dignity is inviolable. It must be respected and protected.

Charter of Fundamental Rights of the European Union

Whereas respect for the dignity of human beings, equality of women and men, and recognition of their rights and freedoms constitute the foundation of justice, liberty and peace;

4. Every person has a right to

. . . [more]
Posted in: Dispute Resolution

Summer Reading and Coming Events

I just returned from a glorious 3-week summer break and am now trying to catch up on my accumulated emails. A few things caught my eye that I thought may be of interest to other SLAW devotees:

  1. IAALS events – I have followed the Institute for the Advancement of the America Legal System for some time. It is a U.S. leader in the analysis and reform of the U.S. justice system, including through unbundled legal services. Two events to note:
    1. Redesigning Legal Speaker Series: The next session is on August 24, 2021 and is entitled “Legal Tech –
. . . [more]
Posted in: Dispute Resolution

Mediator Proposals: Yes or No?

In mediation, it is always a delicate question how much the mediator should try to shape an agreement, or leave it entirely to the parties.

This is especially true when the parties the parties are very close to agreement and reach an impasse. I think most mediators would agree that the impasse can often be broken by challenging the parties’ assumptions – and their assessments of positions and interests – that lead them to say: “This far and no further.”

Maybe one side feels that it has been making more concessions than the other. And, usually, each side believes its . . . [more]

Posted in: Dispute Resolution

“Noise” and Decision-Making – Why Consistency in Decisions Matters

The divergence between the law on the books and the law as applied — and the uncertainty and unpredictability that result — exacts a price paid in the coin of injustice. ….

R. v. Ferguson, 2008 SCC 6 at paragraph 72

The Rule of Law requires that the law be accessible and “so far as possible intelligible, clear and predictable” (Lord Bingham). Daniel Kahneman, Oliver Sibony and Cass R. Sunstein have written an important book on the unexplained inconsistencies that get in the way of predictability in decision-making: Noise: A Flaw in Human Judgement. This is . . . [more]

Posted in: Dispute Resolution

Avoid the “Advice Trap” – What Does This Mean for Legal Professionals?

I have an advice monster – there, I said it! I admit that when people share their challenges and problems with me, I feel compelled to jump in and provide advice i.e., “here are some things you could do to fix this”.

I can already hear objections from my legal profession colleagues: “Isn’t that why people come to us, for our advice?” That was certainly my first reaction. I’m asking you to hold that thought and read on. I think there is much more to this.

My mediation training taught me the power of questions and coaching, as well as . . . [more]

Posted in: Dispute Resolution

Costs in International Arbitration: What’s “Reasonable?”

In a previous column, I looked at some principles behind awards of legal costs and expenses in Canadian domestic arbitration.

In international arbitration the general rule is that the unsuccessful party pays the successful party’s costs. The question, usually, is how much?

The high cost of international commercial arbitration is the main source of complaint by users of the system, according to a series of surveys by Queen Mary University of London between 2013 and 2018. Costs have continued to increase steadily. In large commercial and in investor-state disputes, they can be in the millions (or tens of millions) . . . [more]

Posted in: Dispute Resolution

Are Virtual Hearings the Same as the Real Thing?

In my view, the simplest answer to this issue [videoconference or in-person] is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.

Justice Frederick L. Myers, Ontario Superior Court of Justice in Arconti v. Smith, 2020 ONSC 2782

What will be the place of virtual hearings in a post-pandemic world? Can . . . [more]

Posted in: Dispute Resolution

Evaluative or Facilitative Mediation? – the Wrong Question

Conflict management professionals have struggled for many years whether to take a “facilitative” or an “evaluative” approach in mediation. This either/or analysis is much too simplistic and grounded in false assumptions. We need a more nuanced approach, drawing on a wide variety of “styles” and tools which are tailored to meet the needs of the situation and the parties. Professor John Lande recently published a concise and helpful article advocating for such an approach.

My mediation training was based in the facilitative approach, but I found this difficult in practice because of my legal training and experience. It seemed to . . . [more]

Posted in: Dispute Resolution

Successful Party Recovers Full Amount of Legal Fees in Arbitration

A recent decision in British Columbia supports the proposition that, in commercial arbitration at least, the successful party may expect to fully recover their reasonable legal costs and expenses. Do recent changes in the B.C. Arbitration Act reinforce that principle?

In Allard v. The University of British Columbia, 2021 BCSC 60, Madam Justice Karen Douglas says that “the “normal rule” in arbitrations is that the successful party is entitled to “indemnification costs unless there are special circumstances that would warrant some other type of costs.” [Paragraph 78]

“Indemnification costs” are a party’s actual legal costs and expenses, and contrast . . . [more]

Posted in: Dispute Resolution

Julie Macfarlane’s Going Public: Lessons for Justice System Change

It is very difficult to read about the suffering of someone you admire and care about. And yet, when I finished Julie Macfarlane’s new book, Going Public”, the story of her experiences of sexual abuse and violence, I felt enlightened and uplifted.

Why? I think it is because Julie is vulnerable about her experiences AND uses her professional wisdom, insight and experience to put her stories into a larger context.

“Vulnerability is our most accurate measurement of courage.” Brené Brown

This book is important for many people and groups, including:

  • Survivors, their families and those supporting them
  • Professionals
. . . [more]
Posted in: Dispute Resolution, Justice Issues

Procrastination and Decision Writing: Finding the Way

“Sometimes it’s important to stop whatever break you’re taking and just do the work” – New Yorker Cartoon by Bruce Eric Kaplan

“Why, then, do so many experts insist that they’ve found the one true and right way? It’s a fact about human nature: when getting advice, we love to receive a precise, standardized template for success, and when giving advice, we love to insist that the strategy that works so well for us will surely work for others. But each of us must find our own way”.

Gretchen Rubin, Outer Order, Inner Calm

The working life of an . . . [more]

Posted in: Dispute Resolution