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Archive for the ‘Dispute Resolution’ Columns

“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

“The Perils of Not Having a Dispute Resolution Mechanism”

A recent decision of the Alberta Court of Queen’s Bench, in the judge’s words “highlights the perils of not having a dispute resolution mechanism built into a contract.”

Madam Justice Loparco described the lawsuit in North Pacific Properties Ltd v Bethel United Churches of Jesus Christ Apostolic of Edmonton as a “Jenga tower.”

The case involved a very complicated real estate deal (119 paragraphs summarizing the evidence). The saga started in 2006, with an agreement to sell property to a developer and transfer of part of it back to the Bethell church. The original buyer assigned the purchase agreement to . . . [more]

Posted in: Dispute Resolution

Measuring the Effectiveness of Unbundling: A Novel Approach

It is hard to believe that it has been over 3 years since the launch of the BC Family Unbundling Roster. There are now over 175 legal professionals on the list from all over BC.

It is time to assess whether unbundling (including legal coaching) is helping to close the A2J gap in BC. One challenge is that we have little data to guide evidence-based service improvement and policy-making. We need evidence about the client’s experience of unbundling and details of the experience of the legal professionals as well. If legal professionals do not see advantages both for their . . . [more]

Posted in: Dispute Resolution

Meaningful Access to Justice: What Is the Role for Tribunals and Adjudicators?

A review of “The Justice Crisis: The Cost and Value of Accessing Law”, Edited by Trevor C.W. Farrow and Lesley A. Jacobs (UBC Press, 2020)

This recent book arises out of the research done by members of the Costs of Justice research project with a focus on the cost and affordability of justice in the civil and family law areas. The two main research questions in this project are: what is the cost of delivering an effective civil justice system; and, what are the economic and social costs of failing to do so?

The main audiences for this book are . . . [more]

Posted in: Dispute Resolution

Mediation-Arbitration: More Than Just a Mash-Up

One of the objections we often hear to Mediation-Arbitration (Med-Arb) is that it is “neither fish nor fowl”. It is not an effective form of mediation because the mediator is constrained by their dual role. The impartiality of the arbitrator is somehow compromised by also acting as mediator.

I think this is a misunderstanding of what med-arb is all about. It’s not just a hybrid mash-up of two forms of dispute resolution. It’s a unique form of its own, with its own benefits and challenges. And it can take many different forms, to suit many different kinds of disputes.

My . . . [more]

Posted in: Dispute Resolution