Some tribunals routinely tape record proceedings while others consistently prohibit it. And within those tribunals that allow tape recording of proceedings, practices on the use of the tape or transcript also vary. It is pretty clear in law that administrative tribunals are not required to record the proceedings, unless required to do so by statute: Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793

Administrative tribunals were designed to be less formal than courts, yet the recording of proceedings is a hallmark of the judicial process. Why do some tribunals routinely tape proceedings and . . . [more]

Much has been written about apologies and how they can be effective in resolving conflict. However, two recent events spurred me to tackle this important topic once again and identify lessons that apply to conflict resolution.

First, I listened to a terrific of the CBC radio program “Under the Influence” with Terry O’Reilly. He is a master storyteller and devoted this episode of his terrific series to corporate apologies used by corporations strategically as part of a public relations plan to redeem themselves in the eyes of their public. He described four specific situations in which corporations (Johnson & Johnson, . . . [more]

When my daughters sailed on the tall ships for several summers, the crew had a daily activity called “mandatory fun.” It seems like an oxymoron until you think about it a bit. If you tell people they’re going to have fun, they do.

If you tell people they have to try to resolve their disputes, or else… — they will.

I have had many “full and frank discussions” (a very useful diplomatic euphemism) with fellow commercial lawyers about whether to include mandatory mediation clauses in business agreements.

Those who are vehemently against the idea insist that forced mediation doesn’t work. . . . [more]

We were recently asked to contribute a chapter on ODR and the Courts to an International treatise on ODR edited by Mohamed S. Abdel Wahab, Ethan Katsh and Daniel Rainey. In researching how Courts could and should use ODR, we were pleasantly surprised to see how many court-run ODR projects are currently being implemented or tested around the World. From the United Kingdom’s Money Claim Online and Possession Claim Online, to Australia’s eCourt to the seemingly defunct Subordinate Courts of Singapore’s eAlternative Dispute Resolution (e@dr) project (the website is no longer online), ODR practices and processes are seeping into the . . . [more]

When the discussion turned to rebuilding the British House of Commons in 1943 (after its destruction on May 10, 1941) Winston Churchill in a simple but profound way stated, “We shape our buildings and afterwards our buildings shape us.” He had fixed ideas about what the rebuilt House of Commons should look like – exactly like it was before. He was opposed to the semi-circular chamber which was popular in continental Europe and the U.S. (and Toronto City Hall) and in his view was poorly suited to party politics. His theory, based on his own experience, was that changing political . . . [more]

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]