Justice must be fair and impartial, but also must be seen to be fair and impartial – and inclusive tribunal processes are a big contribution to the sense of fairness that all participants in a tribunal proceeding are entitled to receive.

Language – and people’s perception of that language – is an important gateway to fairness (and perceptions of fairness). Karen Yin has a website that focuses on the language of equity and has also recently published a book that serves as a useful guide to the use of what she terms “conscious language”: The Conscious Style Guide: A Flexible . . . [more]

Since the publication of the ADR Institute of Canada’s Med-Arb Rules in 2020, Med-Arb has become much more widely accepted as an integrated dispute resolution process in Ontario. Despite this many counsel and parties still have a significant degree of resistance to its use. In the best-known form of med-arb, a single neutral acts as both mediator and arbitrator. The process only transitions into arbitration if the mediation fails; in that case, the med-arbitrator conducts the arbitration and issues a binding decision.

This process offers time and cost efficiencies over stand alone mediation and arbitration and guarantees an outcome, it . . . [more]

Professor John Lande has just published a terrific article “Theory and Practice of Mediation Representation”. He has also posted a summary here. Professor Lande acknowledges that there is much more written about how to mediate (as mediator) than how to represent clients in mediation (as counsel). Given that it is very common for lawyers to support clients in mediation, he gathers the best existing literature on the subject and presents both a theoretical framework for analyzing mediation representation and practical techniques for lawyers to use. There are helpful tables and checklists describing tasks for both lawyers and mediators. . . . [more]

The Canadian Judicial Council (CJC) has issued ethical guidelines for judges on the use of social media. These guidelines could be a useful template for updating or expanding codes of ethics for tribunal members. In this column I identify some of the key parts of the guidelines as well as some of the shortcomings.

The CJC defines social media, using the Oxford English Dictionary definition as its foundation:

 … social media is defined as “websites and applications which enable users to [access], create and share content or to participate in social networking.” This definition encompasses a wide variety of tools,

Artificial Intelligence (AI) has suddenly emerged as a disruptive force across numerous sectors, including the field of Alternative Dispute Resolution (ADR). The integration of AI into the mediation process holds the promise of enhanced efficiency, reduced costs, and improved access to justice. However, at this stage, it is virtually impossible to fully grasp the potential impact on mediation, both in its immediate and long-term effects.

AI has been around since the 1950s and we are all familiar with it in one form or another. But GPT type AI is a different technology compared to earlier AI. It will change our . . . [more]

“All people want and need to be Heard, Seen and Loved” (HSL).

— In That Order —

The Dalai Lama (Note 1)

The Youth Voices Initiative (sponsored by the BC Family Justice Innovation Lab Society) is a youth-led group that has been working for over 7 years to advocate for children’s right to have their views heard about issues affecting their lives resulting from parental separation. Note 2

The United Nations Convention on the Right of the Child (UNCRC), Article 12 confirms that this is a RIGHT of children and youth – not a privilege granted by adults.

In 2022, . . . [more]

If you want to be a full-time member of a federal tribunal, one of the conditions of employment for many of those tribunals is that you must live within commuting distance of the National Capital Region (NCR), otherwise known as Ottawa-Gatineau. There was a time when this requirement made some sense – in the days before reliable telecommunications, especially video technology. However, today it acts as a significant barrier to a geographic diversity of appointments to tribunals. It also significantly limits the pool of available candidates for specialized tribunals.

Not all federal tribunals have this residency requirement. Some tribunals have . . . [more]

This column is a cautionary tale for adjudicators who use social media such as the platform formerly known as Twitter – although equally applicable to other social media platforms such as LinkedIn. In Law Society of Ontario v. Diamond, 2024 ONLSTA 8 (CanLII), the appeal panel of Ontario’s Law Society Tribunal, found that the current chair of the Tribunal should have recused himself from a conduct hearing based on comments he had made on social media prior to being assigned to the panel, related to the lawyer whose conduct was under scrutiny (Jeremy Diamond of Diamond & Diamond).

Jeremy . . . [more]

It seems that the world is experiencing more serious and intractable conflict. Our brains are hardwired to focus on bad news, which is everywhere and which can lead to stress and even despair. As conflict management professionals, what can we do to navigate these stormy times?

I offer a hat tip to Tammy Lenski for linking to this article by William Ury:

3 Ways to Make Conflict Less Destructive

William Ury is well known to most of you as an acclaimed mediator, co-founder of Harvard’s Program on Negotiation, co- author of the famous “Getting to Yes” and author of “Possible . . . [more]

A mediation critic claims “mediators have no teeth”. This is to suggest that mediators have no power. The thinking being that a mediator’s lack of decision making renders them without authority.

Mediation is a process of self-determination for the parties participating in it. The mediator is a neutral facilitator, not an outcome imposer. For that reason, a mediator’s settlement rate is as misleading a statistic as a pitcher’s wins in baseball. Baseball fans know that a pitcher cannot earn a win without their team scoring runs, a task the pitcher is not involved in. Likewise, whether or not a case . . . [more]

People’s Law School recently launched a ChatGPT-4 powered Chatbot to respond to questions posed by visitors to PLS’s website. The Chatbot is named Beagle+ and it has a very cute icon.

This PLS post describes the Chatbot and provides some examples of questions and responses. I was particularly intrigued with the assertion that it provides “helpful and empathetic” responses to peoples’ legal questions. I’m skeptical about AI’s ability to communicate effective empathy. But I was surprised to read the final example in the post:

Beagle+: Before you go, I just want to remind you to take care of

Everyone is the poet of their memories. … But like the best poems, they’re also never really finished because they gain new meaning as time reveals them in different lights.

Richard Hell

The resolution of disputes does not always depend on the memories of parties or witnesses, but when credibility is at issue the memories of actions can be a critical part of resolving disputes. The more we learn about how memories are formed, and more importantly, how they are retained, the more we should have real concerns about the ability of decision-makers to assess credibility of testimony of events . . . [more]