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Archive for the ‘Dispute Resolution’ Columns

Requests to Postpone and Adjourn: Balancing Fairness and Efficiency

Like excuses for not doing homework every adjudicator has seen a variety of requests for a postponement or adjournment of a hearing. In a recent case in the U.S., the lawyer for the accused in a criminal trial asked for an adjournment to attend an Ernest Hemingway lookalike contest. In denying the request, the judge wrote:

Between a murder-for-hire trial and an annual look-alike contest, surely Hemingway, a perfervid admirer of “grace under pressure,” would choose the trial.

At his most robust, Hemingway exemplified the intrepid defense lawyer:

He works like hell, and through it. . . . He

. . . [more]
Posted in: Dispute Resolution

“What if They Get It Wrong?”

One of the fears we often hear from business people and lawyers who are reluctant to put “final and binding” arbitration clauses in contracts is: “What if the arbitrator gets it wrong?”

The recent decision of the British Columbia Court of Appeal in Creston Moly Corp. v. Sattva Capital Corp., 2012 BCCA 329 (CanLII) offers an object lesson in how the courts may still be too eager to review arbitration decisions and may even get the result “wrong” in situations where the arbitrator actually “got it right”.

The case involved a dispute over the payment of a finder’s fee in . . . [more]

Posted in: Dispute Resolution

Are UNCITRAL’s Draft Procedural Rules for ODR Doomed to Fail?

By the time this column is posted, UNCITRAL’s Working Group III, the group charged with the drafting of procedural rules for business-to-consumer online dispute resolution (ODR) services, will be meeting in New-York city for its 27th session, the 6th session dealing with the drafting of said rules (previous sessions dealt with transport and shipping legislation). Ourselves, and others (mainly John Gregory), have reported and commented on these rules on multiple prior occasions, but as time goes on, the major question surrounding said rules is less and less “what should they say”, and more and more “why bother”. At . . . [more]

Posted in: Dispute Resolution

Mediating at a Distance: Will We Embrace the Challenge of Technology?

In his new book “Tomorrow’s Lawyer”, Richard Susskind claims that there are at least 13 “disruptive technologies” in law. A “disruptive technology” is one that fundamentally challenges and changes the functioning of a firm or sector (as opposed to supporting and enhancing current operational methods). He predicts that collectively these 13 technologies will transform the entire legal landscape.

He includes “online dispute resolution” or ODR in this group. He uses a very broad definition of ODR:

When the process of actually resolving a legal dispute, especially the formulation of the solution, is entirely or largely conducted across the

. . . [more]
Posted in: Dispute Resolution

Literacy and Access to Administrative Justice

Last week the Canadian Bar Association held a summit on access to justice in Vancouver. I spoke on active adjudication as a tool to enhance access to justice. My co-presenter, Darin Thompson, spoke about online dispute resolution. In preparing for my presentation, I was reflecting on the skills or aptitudes that disputants bring to the justice process. It is nearly impossible to provide individualized responses to all of the parties that appear before tribunals, however, it is crucial that tribunals have at least a sense of the needs of the community that it serves. In this column, I will focus . . . [more]

Posted in: Dispute Resolution

“Project Umpire” — Alternative Approach to Governance of Complex Projects

As winter turns to spring and hockey gives way to baseball and soccer, I can’t help but think about the role of referees and umpires and wonder why we don’t use them more for commercial dispute resolution.

Every competitive sport needs a referee or umpire. Even in recreational leagues, players know there will be disputed plays, broken rules and conflicts.

Business is highly competitive. Technology projects, in particular, need on-the-spot umpires who can make calls quickly and settle conflicts efficiently.

Contracts for large, complex projects typically require disputes to be escalated to senior executives or a project steering committee before . . . [more]

Posted in: Dispute Resolution

The 2013 International ODR Forum Is Coming to Montreal

Considering a recent announcement that the European Parliament voted, on March 12th, to go forward with the development of an EU-wide online dispute resolution (ODR) platform, and that said platform “will be operational at the end of 2015”, it seems that ODR is poised to reach new heights in the next few years.

What this entails for the legal community and how this and other initiatives will impact traditional legal structures are therefore topics that need to be addressed shortly if lawyers want to adapt their practice to this emerging trend.

This is why the Université de Montréal’s . . . [more]

Posted in: Dispute Resolution

Med-Arb: The Adjudication Perspective

“The promise of arbitration is choice, and in order to fulfill that promise, choice must be deliberatively and effectively exercised,” Thomas J. Stipanowich, in Arbitration: the New Litigation.

“I am a firm adherent to the school of thought that denies acceptability of a person who has mediated subsequently filling the role of arbitrator, notwithstanding statutory recognition of this possibility.” Sir Laurence Street, “The Language of Alternative Dispute Resolution” [I992] ADRLJ 144.

Kari Boyle and I are writing columns this month about mediation at adjudication, commonly known as med-arb: she from the mediation perspective and I from the adjudication . . . [more]

Posted in: Dispute Resolution

Med-Arb: From the Mediator Perspective

My Slaw colleague Ian Mackenzie suggested that we each explore the topic of med-arb – I would take the perspective of mediation and Ian the perspective of arbitration. I thought that would be a great way to spur more discussion about this “hot” topic.

When I taught “Introduction to Dispute Resolution” to first year students at UBC Law School a few years ago we spent some time collaboratively constructing the “DR Continuum”. I’m sure most of you are familiar with the linear chart showing dispute resolution processes along a line from “avoidance” on the far left to “war” on . . . [more]

Posted in: Dispute Resolution

Mediator Saves NHL & Players From Themselves

The pivotal role of Scot Beckenbaugh, Deputy Director of the United States Federal Mediation and Conciliation Service, in resolving the 113-day National Hockey League lockout provides an excellent case study in the art of high-stakes mediation.

Published accounts of Beckenbaugh’s role in the final week of make-or-break negotiations illustrate the key attributes that disputing parties should seek in any mediator.

Subject matter expertise:

Beckenbaugh was brought into the negotiations for his mediation skills, not his knowledge of the specific financial issues in dispute. He is not a “hockey guy”. His bio on the FMCS website mentions “extensive experience in public . . . [more]

Posted in: Dispute Resolution

UNCITRAL’s Draft Procedural Rules for Online Dispute Resolution for Cross-Border Electronic Commerce Transactions: Where Are We Now?

Between November 5th and 9th, the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III met for its 26th session, the fifth session dedicated to the drafting of procedural rules for online dispute resolution for cross-border electronic commerce transactions. Those who would need a refresher course on the working group’s agenda and mandate can read John Gregory’s posts from April of 2012 and 2011. As with the previous three sessions of the Working Group, work was to be centered around the “preparation of legal standards on online dispute resolution for cross-border electronic transactions . . . [more]

Posted in: Dispute Resolution

When “Your Day in Court” Does Not Include an Oral Hearing

When a party to a proceeding says that they “want their day in court”, an oral hearing is usually what he or she is contemplating. Just ask Conrad Black: Conrad Black v. The Advisory Council for the Order of Canada, 2012 FC 1234. (For commentary on the other aspects of the decision, see here and here.

However, in most cases there is no automatic right to an oral hearing. Procedural fairness does not require an oral hearing in all circumstances. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court stated . . . [more]

Posted in: Dispute Resolution