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Archive for the ‘Dispute Resolution’ Columns

When Mediation and Arbitration Are Not Really Confidential or Private

In most cases, privacy and confidentiality are recognized as important benefits of mediation and arbitration, but they are not unconditional.

In a recent family law case, the Supreme Court of Canada has again reminded us that there are limitations to the confidential nature of mediation. In particular, mediation communications may be disclosed to prove the existence and terms of a mediated settlement.

Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54, involved a dispute between former spouses over a number of separation, child custody and support issues. In Quebec, the provincial government makes mediation widely available . . . [more]

Posted in: Dispute Resolution

New Report on Phase 1 of the Family Law Unbundled Legal Services Research Project

My post in January 2021 introduced the Family Law Unbundled Legal Services Research Project funded by the Legal Aid BC / Law Foundation BC Legal Research Fund. In this post I am very pleased to advise that the report on Phase 1 of the project is now available here.

Quoting from the Executive Summary:

The Family Law Unbundled Legal Services Research Project (ULSRP) is an initiative designed to both evaluate the effectiveness of family unbundled legal services and to facilitate access to justice by enhancing the working relationships between the existing community of ULS providers and BC citizens most in

. . . [more]
Posted in: Dispute Resolution

Lawyers and the Self-Represented: Ethical Obligations in the Hearing Room

The role of adjudicators in hearings with self-represented litigants (SRLs) has been discussed in many court decisions and articles. What is less explored is the role of opposing counsel. In this column I will discuss the possibly expanding role of opposing counsel in facilitating access to justice for SRLs. Although the adjudicator has the primary role in managing a hearing and in assisting the self-represented party, opposing counsel can play an important role. It is also important that adjudicators clearly communicate their expectations of the lawyer when a hearing includes an SRL.

The Canadian Judicial Council’s Statement of Principles on . . . [more]

Posted in: Dispute Resolution

BEWARE: Pre-Conditions to Arbitration

I’m a strong supporter of stepped dispute resolution clauses in contracts. Business people want a chance to negotiate or mediate a solution to their problems before handing things over to lawyers for arbitration or litigation.

I often recommend stepped clauses to clients when we were negotiating technology contracts. And I still recommend them as a mediator and arbitrator.

But several speakers at the CanArb Week conference earlier this fall reminded us of some of the potential pitfalls of these clauses. And some recent court decisions have highlighted the risks.

One of the most serious is the risk of inadvertent (or . . . [more]

Posted in: Dispute Resolution

Toward a Unified Theory of Administrative Law?

“Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan.”

Justice David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency

“The “Quest”, shall we say, for a unified theory of Administrative Law is a constant yearning or aspiration but such a theory, in my view, is probably unattainable, in large measure because there occurs, all along, these repeated shifts in values, and these cognitive or epistemic shifts, in what we consider just or

. . . [more]
Posted in: Administrative Law, Dispute Resolution

A Reminder to Innovators: Change Is About Values and Identity

We know that change is hard, especially when (as it usually does) it involves changing the behaviour of human beings. Can we argue or persuade our way through this kind of change?

According to transformation expert Greg Satell, the answer is a resounding NO!

First, some background. Legal professionals are taught that success depends on sound and logical arguments to persuade the other party(ies) or a decision-maker of the rightness of the client’s position. Most of us are also firmly connected to the need to be “right”. While this approach may suit our adversarial system, it can create a . . . [more]

Posted in: Dispute Resolution

Are Hybrid in-Person and Virtual ADR Proceedings the New Normal?

As we (fingers crossed) emerge from the COVID pandemic over the coming months, one of the things we will ponder is how much we want go back to in-person mediation, arbitration and other proceedings.

There will always be many advantage to meeting face-to-face. The personal connection does help facilitate discussion and settlement of disputes. It is also an advantage for adjudicators to see and hear counsel and witnesses in the flesh.

But online tools have improved a lot in the past 18 months. So has our comfort level using those tools, many of which have been around much longer. How . . . [more]

Posted in: Dispute Resolution

The Open Court Principle and Privacy: A New Frontier?

To make clear the necessity of privacy as a context for respect, love, friendship and trust is to bring out also why a threat to privacy seems to threaten our very integrity as persons. …

Charles Fried, “Privacy,” (1968) 77:3 Yale Law Journal 475–493

Article 1: Human dignity is inviolable. It must be respected and protected.

Charter of Fundamental Rights of the European Union

Whereas respect for the dignity of human beings, equality of women and men, and recognition of their rights and freedoms constitute the foundation of justice, liberty and peace;

4. Every person has a right to

. . . [more]
Posted in: Dispute Resolution

Summer Reading and Coming Events

I just returned from a glorious 3-week summer break and am now trying to catch up on my accumulated emails. A few things caught my eye that I thought may be of interest to other SLAW devotees:

  1. IAALS events – I have followed the Institute for the Advancement of the America Legal System for some time. It is a U.S. leader in the analysis and reform of the U.S. justice system, including through unbundled legal services. Two events to note:
    1. Redesigning Legal Speaker Series: The next session is on August 24, 2021 and is entitled “Legal Tech –
. . . [more]
Posted in: Dispute Resolution

Mediator Proposals: Yes or No?

In mediation, it is always a delicate question how much the mediator should try to shape an agreement, or leave it entirely to the parties.

This is especially true when the parties the parties are very close to agreement and reach an impasse. I think most mediators would agree that the impasse can often be broken by challenging the parties’ assumptions – and their assessments of positions and interests – that lead them to say: “This far and no further.”

Maybe one side feels that it has been making more concessions than the other. And, usually, each side believes its . . . [more]

Posted in: Dispute Resolution

“Noise” and Decision-Making – Why Consistency in Decisions Matters

The divergence between the law on the books and the law as applied — and the uncertainty and unpredictability that result — exacts a price paid in the coin of injustice. ….

R. v. Ferguson, 2008 SCC 6 at paragraph 72

The Rule of Law requires that the law be accessible and “so far as possible intelligible, clear and predictable” (Lord Bingham). Daniel Kahneman, Oliver Sibony and Cass R. Sunstein have written an important book on the unexplained inconsistencies that get in the way of predictability in decision-making: Noise: A Flaw in Human Judgement. This is . . . [more]

Posted in: Dispute Resolution

Avoid the “Advice Trap” – What Does This Mean for Legal Professionals?

I have an advice monster – there, I said it! I admit that when people share their challenges and problems with me, I feel compelled to jump in and provide advice i.e., “here are some things you could do to fix this”.

I can already hear objections from my legal profession colleagues: “Isn’t that why people come to us, for our advice?” That was certainly my first reaction. I’m asking you to hold that thought and read on. I think there is much more to this.

My mediation training taught me the power of questions and coaching, as well as . . . [more]

Posted in: Dispute Resolution