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]

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]

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]

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]

Yes, Virginia, there is an administrative law.

But what is it?

…It is now recognized. But it is not quite accepted. It fits no antique mould. Not knowing just what it includes, the legal profession has never felt quite at ease with it nor quite known how to handle it.

Albert Abel, “The Dramatis Personae of Administrative Law”, 1972

“Administrative law is not for sissies — so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture. There will be a quiz afterwards.”

Justice Antonin Scalia, “Judicial Deference to . . . [more]

I recently attended “Greener Arbitrations: The Path Towards Carbon Neutrality”, a webinar organized by the North America Committee of the Campaign for Greener Arbitrations (CGA-NA).

I was so impressed by their project that I immediately signed their green pledge. I also signed the green pledge endorsed by the World Mediators Alliance on Climate Change (WoMACC).

The pledges themselves are fairly simple. They encourage the use of technology to avoid unnecessary travel to hearings and meetings, and use of electronic documents instead of paper. When travel is necessary, they encourage use of more environmentally friendly transport and meeting facilities. And . . . [more]

The point of making ADR more diverse … is that this element of the legal system remains out of touch with the reality of society, the wider workforce, and the legal profession.

Ontario Bar Association Working Group on Neutral Diversity, “Neutral Diversity in Ontario”, March 2022

We have two systems of justice in Canada – the public system of courts and tribunals – and the private system of ADR (mediation and arbitration). The focus of my previous columns has been mostly on the former. In this column I want to turn the focus to the private ADR system.

There are . . . [more]

In the summer of 2019, the BC Family Justice Innovation Lab received an invitation to work with a group from Ulster University in Northern Ireland to improve access to justice for litigants in person (we call them “SRLs”). Led by Professor Gráinne McKeever, the group was eager to use a human-centred design process as part of their research project. Jane Morley Q.C. and I arrived in Belfast in early November 2019 and supported the team to design and implement the first of a series of HCD workshops with diverse participants including, of course, users. It was a wonderful experience, . . . [more]

Preventing a mediator-arbitrator from expressing a tentative view of the strength of a party’s position during mediation would have a “chilling effect” on the effectiveness of the mediation-arbitration process.

So says the Federal Court of Appeal in a recent labour relations case. It is one of a growing number of cases where courts have recognized the value of mediation-arbitration and expressed reluctance to tie the hands of the mediator-arbitrator too much.

In Fono v. Canada Mortgage and Housing Corporation, 2021 FCA 125, an employee sought judicial review of the decision of an adjudicator under the Canada Labour Code. The . . . [more]

The task of a [decision-maker] is to find the golden mean, to “decant and simplify,” to synthesize the evidence and make the necessary findings; the task is not to be a court reporter.

Welton v. United Lands Corporation Limited, 2020 ONCA 322

Writing is one thing, but rewriting is the real messy thing.

William Germano, “On Revision: the only writing that counts”

Courts are very good at giving advice to administrative decision-makers on how to write reasonable decisions, but often that advice is too general. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (at . . . [more]

We are living in a world of protests against COVID restrictions, “freedom convoys”, imminent war over Ukraine, and protests about many serious issues including climate change, social injustice, racism, residential schools…the list could go on an on. Humankind is facing complex challenges and our response is increasingly to divide into factions, engage in “othering” and escalate conflict. I often don’t want to listen to the news or open my news app for fear of hearing about yet another form of deep cultural and structural divide.

I’m a seeker of peace. As a staunch advocate of effective conflict management techniques and . . . [more]

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]