In my last post, I promised to explore how the current commercial mediation model might be “tweaked” to unlock the full potential of mediation. There seemed to be a divide between “interest-based” or “facilitative” mediation (which is the focus of most mediation training programs) and the commercial mediation model.

Is there a way to preserve the foundational principles of interest-based negotiation and mediation while venturing into the world of commercial mediation?

Experienced litigators and some mediators have remarked that commercial mediation is really a purely distributive exercise which is only about the money. Is that ever really true? I . . . [more]

The debate over the merits of facilitative vs. evaluative mediation never seems to end, but is it an artificial distinction in the mediation of commercial disputes?

A recent article in the Australasian Dispute Resolution Journal suggests that it is.

The author, Troy Peisley, a mediator and arbitrator with more than 20 years experience in commercial litigation and forensic accounting, argues in favour of “blended mediation”, which combines the facilitative and evaluative models and employs a “mediation matrix” to evaluate both the qualitative and quantitative aspects of the dispute.

It’s an interesting model and seems equally relevant to the realities of . . . [more]

Notwithstanding the fact that, as we mentioned in a previous column, it remains difficult to find a business model that could ensure the availability of a fair and accessible online dispute resolution service, ODR has come a long way. When we first launched the CyberTribunal, back in 1996, and tried to convey our objectives at various conferences on information technology law (thus before audiences that could be considered informed), many legal practitioners questioned the possibility of modeling mediation and arbitration procedures. They cited legal reasons, which were quickly swept away through examination of relevant texts, as well as the . . . [more]

I have been an adjudicator for nearly ten years. This experience has given rise to much food for thought. Training a diverse range of adjudicators from a variety of tribunals has caused me to reflect on why we do the things we do in adjudication. While core processes are similar across tribunals, there is a great diversity in approaches. For me, the adjudicative processes need to meet two, primary objectives: fairness and efficiency. These columns will highlight the diversity in approach and look at best practices in meeting these twin objectives.

Testimony is at the centre of most oral hearings. . . . [more]

A senior commercial litigator who had just completed five days of civil mediation training in BC commented: “That didn’t look at all like what I have experienced in mediation!”

With a little probing, he expanded on the disconnect that he experienced as follows:

Attribute Training Model Commercial Mediation Model Mediator selection Process expertise Subject matter expertise Pre-mediation preparation Detailed separate meetings between mediator and each party and counsel, if any, to discuss underlying interests, goals Little or no interaction with the mediator prior to mediation. Possibly some exchange of mediation briefs (similar to court submissions) Mediation Emphasis on joint meetings . . . [more]

Back at the end of the last millennium, the Centre de recherché en droit public (CRDP), along with colleagues from the Centre de recherches informatique et droit (CRID) and the Centre national de la recherche scientifique (CNRS) obtained a research grant from the European Commission’s Directorate General for Health and Consumers to develop what would become the ECODIR (Electronic Consumer Dispute Resolution) ODR platform.

Launched in Brussels in October 2001, the ECODIR platform was well received by the various stakeholders: consumer associations, professional associations, industrial groups, the public sector, the European Commission, etc. The technical aspects of the . . . [more]

Commercial arbitrators often hear litigators and business people complain that arbitration has become just as expensive as litigation.

“Why arbitrate when it costs so much? Plus we have to pay the arbitrator; in court, at least we don’t pay for the judge.”

It’s a valid question. But I think the more important question is: what can arbitrators and counsel do to make arbitration more cost effective?

The arbitrator needs to take control of the process. This is harder than it sounds. Arbitration exists because the parties have agreed to arbitrate rather than litigate. So the parties control the process and . . . [more]