Litigation and arbitration are teeming with experts these days.

There are technical experts to explain what happened. Others to say whose fault it was. And another bunch to quantify the damages.

Almost every sizable case has at least one expert on the witness list. Well, never just one. Each side must have their own expert. And, of course, they never agree.

That’s the problem with experts. Recent studies have shown that people have a very hard time understanding what experts say and giving appropriate weight to conflicting expert opinions. Adjudicators are no different from anyone else.

Derek Koehler, a psychology . . . [more]

Active adjudication is an approach to dispute resolution that puts more emphasis on the role of the adjudicator in focusing the issues in dispute and the process for resolving those issues. It stands in contrast to the classic adversarial model of dispute resolution that puts more emphasis on the parties shaping the matters in dispute and the evidence required to prove their case. Active adjudication has many advantages for access to justice. I have written about this before. Active adjudication can result in shorter processes as well as levelling the playing field, to some extent, for self-represented parties.

The . . . [more]

For some years I have been following Dr. Brian Goldman, a veteran ER physician and one of Canada’s most trusted medical broadcasters. His CBC radio show “White Coat, Black Art” tackles tough issues, makes sense of “bafflegab” and highlights important new innovations. His book “The Secret Language of Doctors” is an illuminating view inside of the medical system and a great read.

I went to his Vancouver Institute lecture in Vancouver in January entitled: “Disrupt Me + Engage You: The Health Care Revolution”. I couldn’t wait to hear what he had to say about system change in the health . . . [more]

A couple years ago Slaw columnists Kari D. Boyle and Ian Mackenzie collaborated on a pair of excellent articles on Med-Arb – Kerri from the mediator perspective and Ian from the adjudication perspective.

These articles insightfully highlight many of the legal, ethical and practical issues surrounding the idea of having a single person act as both mediator and arbitrator – issues that continue to be hotly debated among mediators and arbitrators.

Med-arb has become widely accepted in labour, family and other areas. The main reason is efficiency.

There are many different models of med-arb. All of them rest on . . . [more]

On January 6th, 2016, different media outlets reported that a certain number of federal courts, including the Supreme Court of Canada, were contesting the issue of a decree (2015-1071) stating that procurement for government IT services now needs to go through Shared Services Canada. As specified in the decree: “a department listed in Schedule I, I.1 or II of the Financial Administration Act must obtain the services specified in paragraph (b) exclusively from the Minister designated for the purposes of the Shared Services Canada Act through Shared Services Canada and is not permitted to . . . [more]

Early in December, I read a court decision summarily dismissing a lawsuit against a hospital. The plaintiff alleged that the hospital was responsible for putting fleas on his neck that immobilized him, allowing the military to control his mind. The decision was short, to the point, and unremarkable. It is usual in the online world for the author to provide a hyperlink to decisions referred to in the column. I hope that by the end of this column my decision not to hyperlink the decision will be self-evident.

What was striking about this decision was that the plaintiff was identified . . . [more]

Innovation is an integral part of the private sector. Why does innovation seem so much harder in the public sector (or in places like the justice system where the public sector/government plays a major role)?

It doesn’t take much reflection to realize that there are quite a few reasons why innovation in the public sector is more challenging and, at the same time, potentially more fulfilling. It is important to identify these unique contextual factors in order to respond to them effectively.

In his 2004 article “System Failure: Why Governments Must Learn to Think Differently”, Jake Chapman observed . . . [more]

The New York Times recently published a pair of scathing articles about the state of arbitration in the United States. The articles focus mainly on the effect of arbitration on consumer and class action litigation and raise important issues of fairness, transparency and access to justice.

Arbitration Everywhere, Stacking the Deck of Justice (Oct.31, 2015) details how it has become almost impossible for a consumer or small business to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car . . . [more]

As we’ve posted in our previous column, this summer, the UNCITRAL working group on ODR – which we have discussed extensively in previous blogs – has been given an ultimatum: “the Working Group was given a time limit of one year or no more than two Working Group sessions to undertake this work, after which the work of the Working Group will come to an end, whether or not a result has been achieved”. In other words, the Working Group will most likely have no more than five months left (the two sessions are scheduled for 30 November-4 December 2015, . . . [more]

The Supreme Court recently clarified the rules on the role of a tribunal on a judicial review of one of its decisions: Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 (CanLII). The clarifications are useful for courts in deciding whether to give a tribunal standing. Professor Paul Daly has provided a useful overview of the court’s decision on the standing question. In this column, I want to focus on what the court outlined as the basic parameters of what a tribunal can say to the court, once it is given standing.

Justice Rothstein, writing for the . . . [more]

We were lucky enough to travel in England and Wales in early October. We travelled by plane, train, tube, bus and taxi (in addition to miles of walking). At the train station in Bath we picked up a copy of “Metro” – a tabloid type newspaper similar, perhaps, to Vancouver’s “24 Hours”. An article caught my eye: “Tough sentences…baffling lingo of courts explained”. An experienced (unnamed) barrister apparently believes that the jargon in the English criminal courtroom is so confusing (even law students cannot understand it) that he penned a colourfully worded dictionary to translate certain well-used phrases. Each phrase . . . [more]

Supreme Court of Canada Chief Justice Beverley McLachlin’s keynote address to the Canadian Bar Association’s 2015 Annual Meeting this summer looked at “The Legal Profession in the 21^st Century”. (Thanks to Malcom Mercer for posting the text of the Chief Justice’s address — and for the additional insights in his recent Slaw column “Innovate or be Innovated?”)

The Chief Justice talks about many challenges facing the legal profession today. She also talks about the challenge of access to justice. But, sadly, she gives little thought to the role of alternatives to court in addressing either of those challenges. . . . [more]