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Archive for the ‘Dispute Resolution’ Columns

Under the Influence: Ministers (And Others) Communicating With Tribunals

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]

Posted in: Dispute Resolution

“Justice Is the Instrument, but Love Is the Motive”

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]

Posted in: Dispute Resolution

Appeal Courts Say “Hands Off” Arbitration

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]

Posted in: Dispute Resolution

Controversy About How Mediations Begin

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]

Posted in: Dispute Resolution

Staying in Your Lane: The Distribution of Work Between Tribunals and the Courts and the Need for Speed

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]

Posted in: Dispute Resolution

ODR Is No Overnight Sensation

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]

Posted in: Dispute Resolution

The Open Court Principle and Evidence of Harm: The Dust Created by Sherman Estate

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]

Posted in: Dispute Resolution

How to Move Unbundling Forward

I wish to respond to the NSRLP’s August 9th 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]

Posted in: Dispute Resolution

In-Person Mediation: Is It Worth the Effort?

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]

Posted in: Dispute Resolution

A Decision Is Not a Mystery Novel: The Importance of Providing a Conclusion First

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]

Posted in: Dispute Resolution

“Split the Pie” – a Tasty Take on Negotiation

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]

Posted in: Dispute Resolution

System Change: The Dance Between Planning and Action

Chris Corrigan’s recent blog post is entitled “We grow through what we go through”. It is a fascinating reminder that learning about change is not enough to result in transformative changes in how we think and behave, especially in emergent, complex and dynamic environments (think justice system for example). Instead, he says:

If I want to learn to think differently I need to put myself in situations where the constraints afford me different possibilities to act differently.

He explores this idea using his own experience of learning to play jazz. You can watch and listen to others playing . . . [more]

Posted in: Dispute Resolution