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]

How many times have we heard a person exclaim, “I just want my day in court!”? Often, this is in response to what that person considers to be an insulting settlement proposal or as a result of frustration over delays in resolving a conflict.

Just what does that person mean by their “day in court”? I suggest that it is not as simple as we might think. The phrase “day in court” conjures up different mental images depending on one’s background and the situation.

The traditional definition focuses on a person’s right to be heard in a court hearing or . . . [more]

The United Nations working group for online dispute resolution (ODR) of cross-border electronic commerce transactions (UNCITRAL Working Group III) met in Vienna early in November to continue its work on procedural rules for ODR. This effort has been underway since 2010 and should be nearing completion, but the approach taken by the working group has drawn some criticism from those concerned that its focus is too narrow and its proposed rules will be ineffective.

Professor Vikki Rogers, Director of the Pace Institute of International Commercial Law, one of the facilitators of the 2010 colloquium that put ODR on the UNCITRAL . . . [more]

As we are writing these lines, the United Nations Commission on International Trade Law’s (UNCITRAL) working group III is meeting in Vienna to continue its work on online dispute resolution (ODR) or, rather, on establishing guidelines for potential ODR service providers. Since previously scheduled obligations have kept us from taking part in this year’s meeting, we’ll have to wait for feedback from other participants to comment on how things are moving forward.

In the meantime, however, those who wish to get a broader picture of the UNCITRAL negotiations and their potential impact are in luck since Professor Ronald A. . . . [more]

The open court principle has repeatedly been confirmed by the Supreme Court as a “hallmark of a democratic society” (Vancouver Sun, [2004] 2 S.C.R. 332, at para. 23), most recently in A.B. v. Bragg Communications Inc., 2012 SCC 46. However, the exclusion of witnesses from a hearing is a routine exception to this principle. In this column I will explore some of the history of the exclusion of witness order, its purpose, the exceptions and consequences of a breach. The larger question that I will address is whether we can sustain an exclusionary rule in an age . . . [more]

I had the privilege of attending Bernard Mayer’s two day workshop on Vancouver Island last month. Bernie is one of the pioneers and visionaries in the conflict resolution field and his two most recent books (Beyond Neutrality and Staying with Conflict) have transformed my understanding of the field and the roles of people who work within it.

The workshop focused on what Bernie calls “enduring conflict”, conflicts that have a significant enduring element. They are typically:

• deeply rooted
• identify based
• value driven
• embedded in structure
• systemic and complex

Bernie points out that enduring conflicts will not be “resolved” . . . [more]

Although ODR is gathering much support among consumer associations, governments, and private enterprise, lawyers and members of the judiciary seem to be the most outspoken critics of the use of technology to help litigants reach an otherwise unassisted settlement. If cynics like to point to the fact that those in the legal community might simply be afraid to lose their monopoly on brokering settlements and, therefore, their jobs, we believe that this isn’t the case, but rather that their reservations are linked to an unfounded fear that ODR might contribute to the erosion of the rule of law.

For example, . . . [more]

The worldwide patent litigation between Apple Corporation and Samsung Electronics is a perfect illustration of the “lose-lose” nature of high-stakes IP litigation.

While the headlines have focused on the $1 billion U.S. jury award Apple won at the end of August, in the long run Apple may turn out to have been a loser in this struggle as well.

Some brief history.

Apple and Samsung are long-time business partners. Samsung holds many patents on touch screen technology. It supplied screens for the iPod and iPhone. Samsung still makes the touch screen for Apple’s iPad tablet computers. It won the contract . . . [more]

You only get one chance to make a first impression, as the saying goes. A recent study has confirmed that first impressions are persistent and can be difficult to overcome. The opening statement of the adjudicator and of the parties at the beginning of a hearing is that first impression and will often set the tone for the entire proceeding.

In crafting any communication, the first question to answer is, “who is your audience?” In many cases there are primary and secondary audiences. For an adjudicator, the primary audience is the parties to the dispute. The secondary audience for the . . . [more]

 Mediation is gaining popularity in Canada but promotion of mediation is still mostly anecdotal. To develop further, the field needs a more solid foundation of deep empirical research. Mediate BC is attempting to fill some of the gaps based on fourteen years of data collection by its Court Mediation Program (the “CMP”). The CMP has administered the mediation program in the Provincial Court of BC, Small Claims Division, since 1998 and now mediates claims up to $25,000 in Vancouver and up to $10,000 in four other locations. The CMP recently celebrated its 20,000th referral! It has thousands of mediations in . . . [more]

The federal government has announced proposed regulations that will allow banks to opt out of a national customer ombudsman service in favour of private ADR services that they will choose and pay for.

This seems like a bad idea.

If banks can simply shop around for another ADR service provider whenever they are unhappy with the decisions of the current provider, how can consumers and small businesses have any confidence in the integrity and impartiality of decisions?

The Ombudsman for Banking Services and Investments (OBSI) currently has more than 600 participating firms including banks, credit unions, trust and loan companies, . . . [more]

[Sean Dwyer assisted in the preparation of this column.]

Like many others, we have, on this blog and elsewhere, claimed that online dispute resolution (ODR) platforms and processes constitute an extremely useful tool for conflict resolution. This being said, it is unfortunately possible to assert that a majority of attempts to create a system for ODR have fallen short of expectations, making our assertions seem somewhat difficult to defend. However, we remain convinced that the fault doesn’t lie with the technology or the concept, but rather that ODR’s failure is in large part due to the absence of obligation . . . [more]