I’ve observed a trend. It involves the feelings of legal advocates coming into play during mediation. This is often presented as an emotional tie to the client, passion about the collaborative opportunity or being personally dedicated to finding a fair outcome. While I am not sure this is planned strategy, it suggests a ‘heart on one’s sleeve’ fashion in mediation representation.

If you want to paint a mental picture, or otherwise embrace a stereotype about the emotional type of lawyer I am referring, consider Angry Dad from The Simpsons as counsel at your mediation. A male-presenting legal advocate who would . . . [more]

Members of Parliament are expected to advocate for their constituents. However, when that MP is a Minister of the Crown (or a Parliamentary Secretary) there are limits on how far that advocacy can go.

Interference by a Minister in a particular case before a tribunal has long been considered as an inappropriate interference with tribunal independence. This self-evident rule of non-interference was recognized in a document prepared by the federal government in 2015: Open and Accountable Government: “Ministers must not intervene, or appear to intervene, with tribunals on any matter requiring a decision in their quasi-judicial capacity, except as . . . [more]

Many of us work in support of Access to Justice. A2J is an important response to injustice. But why do we do it? What compels us to strive to work in this field? What sustains us in this work?

For most of us it is certainly not financial reward (although there is undoubtedly money to be made by inventing and selling new tools and processes). It may be a need to “give back” out of gratitude for our experience as professionals in the justice system. It may feel like a moral or ethical calling. Perhaps it is all of the . . . [more]

One of the main reasons to choose arbitration is that parties want a decision that’s final and binding. Until they lose. Then they want a court to give them a do-over to fix the arbitrator’s terrible mistakes.

Two recent decisions by the Courts of Appeal in British Columbia and Ontario remind us that the parties should get what they bargained for, “final” means final, and courts should not intervene except in exceptional situations.

In Spirit Bay Developments Limited Partnership v. Scala Developments Consultants Ltd. (2022 BCCA 407) the B.C. Court of Appeal said the court should not intervene, even . . . [more]

What is the best way to begin a first mediation session? Some mediators start with a joint session (where the parties and their lawyers, if any) are present. Others prefer to begin with caucusing (meeting with each party, and their lawyer, separately). Research in the U.S. indicates that this divide is widening with more mediators using a caucusing approach to open discussions.

But WHY is this happening? To date, there has been little empirical research into this important topic.

The good news is that Art Hinshaw and Roselle Wissler (both of Arizona State University) have recently reported on a large . . . [more]

When someone starts a conversation with “it is useful to return to first principles”, you know that things have been drifting a bit. The Ontario Court of Appeal recently used that expression when discussing the role of the court in labour relations matters (National Organized Workers Union v. Sinai Health System, 2022 ONCA 802). In this dispute, the National Organized Workers Union was seeking an interlocutory injunction to prevent Sinai Health System from enforcing a mandatory vaccination policy pending the arbitration of grievances that challenged the policy.

The first principles the court is referring to are of course . . . [more]

Online Dispute Resolution (ODR) has gained credibility lately, due largely to a combination of pandemic limitations on in-person dispute resolution and rapid strides in online technology. But it is the product of more than 20 years of steady development and advocacy.

I was reminded of this reading a pre-publication copy of ODR: Yesterday, Today, Tomorrow, an engaging collection of individual articles by Colm Brannigan and Marc Bhalla that explores the history, current state and future prospects of ODR. The book assembles materials each author has created over the years, including Master of Laws (LLM) research – Brannigan in 2003; . . . [more]

I wrote about the Supreme Court of Canada’s recent restatement of the open court principle in a column last year. In that column I suggested that the court had opened the door for more requests for closed hearings in its decision of Sherman Estate v. Donovan, 2021 SCC 25. Some courts have disagreed with this assessment and at least one court has agreed with it. What is clear from the recent caselaw is that courts are more focused on the evidence necessary to support confidentiality in what would otherwise be open proceedings. Speculation of harm to an important public . . . [more]

I wish to respond to the NSRLP’s August 9^th post entitled The Failure of Unbundled Legal Services to Meet the Crisis in Access to Justice. While I loved the article, the title gave me pause.

The title implies that unbundled legal services have been a failure. Yet the body of the article says:

For all these reasons, unbundled service ought to be a practical and useful alternative for increasing access to justice for many more litigants, for a more efficient legal system, and for a mutually satisfying service model for both clients and lawyers.

Perhaps the title was intended . . . [more]

Having recently done my first in-person mediations in more than two years, I’ve been thinking again about how much benefit there really is over mediating online.

This was prompted by a recent mediation where the parties and their lawyers had travelled from across Canada and the United States to meet in person for a full day mediation in Toronto. At the end of the day the parties had not settled – and were still very far apart. The participants were anxiously checking their flights and travel time to the airport.

“I really thought we would get a lot more out . . . [more]

Cause you’re working/Building a mystery/Holding on/And holding it in/Yeah you’re working/Building a mystery/And choosing so carefully

Sarah McLachlin, “Building a Mystery”

Even lawyers will quickly flip (or scroll) to the end of a court or tribunal decision to see how the case turned out. Patient readers of mystery novels never read the last chapter first because much of the pleasure in reading is in the suspense of not knowing the outcome. However, decisions are not mystery novels and there is no purpose in making them suspenseful.

In recent years courts and tribunals have slightly improved their approach, often by putting . . . [more]

Negotiation is the most common form of dispute resolution.

I recently heard that about 50,000 actions are started in the Ontario Superior Court of Justice each year. About 2,000 cases go to trial. The rest are resolved some other way – mainly negotiated settlements.

I don’t know how accurate those numbers are, but that’s an awful lot of negotiation.

The difficulty, in many cases, is that parties (and counsel) don’t really understand what they’re negotiating about. It’s not the merits of the dispute. It’s not even the dollars claimed on each side.

It’s the difference in value between a deal . . . [more]