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]

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]

“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

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]

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]

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

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 –

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]

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]

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]

In a previous column, I looked at some principles behind awards of legal costs and expenses in Canadian domestic arbitration.

In international arbitration the general rule is that the unsuccessful party pays the successful party’s costs. The question, usually, is how much?

The high cost of international commercial arbitration is the main source of complaint by users of the system, according to a series of surveys by Queen Mary University of London between 2013 and 2018. Costs have continued to increase steadily. In large commercial and in investor-state disputes, they can be in the millions (or tens of millions) . . . [more]

In my view, the simplest answer to this issue [videoconference or in-person] is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.

Justice Frederick L. Myers, Ontario Superior Court of Justice in Arconti v. Smith, 2020 ONSC 2782

What will be the place of virtual hearings in a post-pandemic world? Can . . . [more]