Posts filtered by tags: Dispute Resolution[x]


 

Are Virtual Hearings the Same as the Real Thing?

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,...
Tags: Law, Canada, Smith, Tribunal, Service Employees International Union Local, Dispute Resolution, Bailenson, Arconti, Queen 's Justice of the Superior Court of Justice, Ayodele Akenroye, Eric Kornhauser, Shawn Whelan, CBA Covid Task Force, Jeremy N Bailenson, Southampton Nursing Home


Evaluative or Facilitative Mediation? – the Wrong Question

Conflict management professionals have struggled for many years whether to take a “facilitative” or an “evaluative” approach in mediation. This either/or analysis is much too simplistic and grounded in false assumptions. We need a more nuanced approach, drawing on a wide variety of “styles” and tools which are tailored to meet the needs of the situation and the parties. Professor John Lande recently published a concise and helpful article advocating for such an approach. My mediation training wa...
Tags: Law, Aba, Dispute Resolution, Lande, John Lande, John Wade, Michael Erdle, Leonard Riskin


Successful Party Recovers Full Amount of Legal Fees in Arbitration

A recent decision in British Columbia supports the proposition that, in commercial arbitration at least, the successful party may expect to fully recover their reasonable legal costs and expenses. Do recent changes in the B.C. Arbitration Act reinforce that principle? In Allard v. The University of British Columbia, 2021 BCSC 60, Madam Justice Karen Douglas says that “the “normal rule” in arbitrations is that the successful party is entitled to “indemnification costs unless there are special cir...
Tags: Law, British Columbia, Douglas, Ontario, UBC, Hansard, Karen Douglas, Dispute Resolution, Allard, Justice Douglas, BCSC, Deep River, The University of British Columbia, Peter Allard, Domestic Commercial Arbitration Section, Domestic Arbitration Rules


Julie Macfarlane’s Going Public: Lessons for Justice System Change

It is very difficult to read about the suffering of someone you admire and care about. And yet, when I finished Julie Macfarlane’s new book, “Going Public”, the story of her experiences of sexual abuse and violence, I felt enlightened and uplifted. Why? I think it is because Julie is vulnerable about her experiences AND uses her professional wisdom, insight and experience to put her stories into a larger context. “Vulnerability is our most accurate measurement of courage.” Brené Brown This book ...
Tags: Law, Julie, Anglican Church, Justice Issues, Dispute Resolution, Julie Macfarlane, Lessons for Justice System Change


Procrastination and Decision Writing: Finding the Way

“Sometimes it’s important to stop whatever break you’re taking and just do the work” – New Yorker Cartoon by Bruce Eric Kaplan “Why, then, do so many experts insist that they’ve found the one true and right way? It’s a fact about human nature: when getting advice, we love to receive a precise, standardized template for success, and when giving advice, we love to insist that the strategy that works so well for us will surely work for others. But each of us must find our own way”. Gretchen Rubin, ...
Tags: Supreme Court, Law, Canada, Fca, Cbc, Supreme Court of Canada, Gretchen Rubin, Rasch, Carleton University, Farrier, Michael Enright, Dispute Resolution, Pychyl, Bruce Eric Kaplan, Vavilov, Timothy Pychyl


Square Pegs: Changing the Courts to Fit the Technology

When discussing the modernization of the justice system the conversation can often be about how we adapt the technology to replicate the bricks-and-mortar experience. But how might the institutions and decision-makers themselves adapt to work with the emerging technology? Legal scholar Tania Sourdin talks about three primary kinds of technology in the context of the justice system: Supportive – things like online legal applications that support and advise people using the justice system Replace...
Tags: Google, Technology, Law, Artificial Intelligence, Courts, Machine Learning, Legal Profession, CBA, Justice System, Gina, Decision-making, Practice Of Law, Justice Issues, Practice of Law: Future of Practice, Dispute Resolution, Practice of Law: Practice Management


“The Perils of Not Having a Dispute Resolution Mechanism”

A recent decision of the Alberta Court of Queen’s Bench, in the judge’s words “highlights the perils of not having a dispute resolution mechanism built into a contract.” Madam Justice Loparco described the lawsuit in North Pacific Properties Ltd v Bethel United Churches of Jesus Christ Apostolic of Edmonton as a “Jenga tower.” The case involved a very complicated real estate deal (119 paragraphs summarizing the evidence). The saga started in 2006, with an agreement to sell property to a develope...
Tags: Law, Edmonton, Dispute Resolution, Bethell, Alberta Court of Queen 's Bench, Loparco, North Pacific Properties Ltd, Bethel United Churches of Jesus Christ Apostolic, Daniel Urbas


Measuring the Effectiveness of Unbundling: A Novel Approach

It is hard to believe that it has been over 3 years since the launch of the BC Family Unbundling Roster. There are now over 175 legal professionals on the list from all over BC. It is time to assess whether unbundling (including legal coaching) is helping to close the A2J gap in BC. One challenge is that we have little data to guide evidence-based service improvement and policy-making. We need evidence about the client’s experience of unbundling and details of the experience of the legal profess...
Tags: Law, Dispute Resolution, Standpoint Decision Support Inc, BC Law Foundation, Matt Sims Standpoint Decision Support Inc, Kari [email protected], Family Justice Innovation Lab Society


Meaningful Access to Justice: What Is the Role for Tribunals and Adjudicators?

A review of “The Justice Crisis: The Cost and Value of Accessing Law”, Edited by Trevor C.W. Farrow and Lesley A. Jacobs (UBC Press, 2020) This recent book arises out of the research done by members of the Costs of Justice research project with a focus on the cost and affordability of justice in the civil and family law areas. The two main research questions in this project are: what is the cost of delivering an effective civil justice system; and, what are the economic and social costs of faili...
Tags: Law, Ontario, Jacobs, UBC, Farrow, McHale, Dispute Resolution, Noel Semple, David Wiseman, Trevor C W Farrow, Costs of Justice, Jerry McHale, Lesley A Jacobs


Mediation-Arbitration: More Than Just a Mash-Up

One of the objections we often hear to Mediation-Arbitration (Med-Arb) is that it is “neither fish nor fowl”. It is not an effective form of mediation because the mediator is constrained by their dual role. The impartiality of the arbitrator is somehow compromised by also acting as mediator. I think this is a misunderstanding of what med-arb is all about. It’s not just a hybrid mash-up of two forms of dispute resolution. It’s a unique form of its own, with its own benefits and challenges. And it...
Tags: Law, Canada, Richard Moore, Dispute Resolution, Colm Brannigan, Mediation Arbitration Med Arb, ADR Institute of Canada 's Med Arb Rules


You Have Choices (Litigation Versus Mediation)

Originally posted 2013-10-29 09:30:50. Map of Virginia highlighting Goochland County (Photo credit: Wikipedia) As I sit here thinking about an impending trial in the Goochland County General District Court, it hit me that I also serve as a mediator in that court from time to time.  Coincidentally, I will be “wearing both hats” (litigator and mediator) this week on back to back days.  It will be interesting to have to switch roles so quickly on back to back days. While I don’t have the resul...
Tags: Lawsuit, Law, Wikipedia, Virginia, Construction, Lawyer, Richmond VA, ADR, Mediation, Dispute Resolution, Construction Law, General contractor, Virginia Construction Lawyer, Mechanic's Lien, Constructionlaw, Goochland County Photo


Virtual Hearings, Access to Justice and Privacy

Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode [videoconference] of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work… Justice Perram, Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Australia) Like many adjudicators working ...
Tags: Microsoft, Law, Australia, Canada, Ford, Ontario Superior Court of Justice, CRTC, Dispute Resolution, Amy Salyzyn, My Slaw, Capic, Justice Perram Capic, Justice Perram


Conflict Resolution Professionals! Participate in CLEBC’s Virtual DR Conference Oct 29-30

Continuing Legal Education BC (CLEBC) is offering its annual Conflict Resolution Conference in an innovative virtual 24-hour format. This is a great opportunity to learn from and with innovators from around the world who will share how the field is responding to COVID-19, increased calls for anti-oppression work within our systems, and the challenges of shifting our practices online. AND to do all this from the comfort of your home and at very affordable prices. The conference site describes thi...
Tags: Law, CPD, Dispute Resolution, CLEBC, Continuing Legal Education BC CLEBC, Voice of Youth, Youth Voices


Online Dispute Resolution – Making a Virtue of Necessity

We lawyers, adjudicators, and mediators are normally quite resistant to change. Dealing constantly with conflict, we seek comfort in the dispute resolution processes we know. So it’s still surprising to me to see how quickly the “dispute resolution industry” has adapted to the new reality of physically-distanced dispute resolution imposed by the COVID pandemic. Will we ever want to go back to the old way of doing things? In the spring there was a flurry of tutorials on how to do online dispute r...
Tags: Law, US, Marc, Dispute Resolution, International Council, ODR, Marc Bhalla, Simon Boehme, Mitchell Rose @SettleWithMitch


Youth Voices: A Call to Action for Family Lawyers and Mediators–Part 2

This is Part 2 of a two-part piece focusing on how family lawyers and mediators can participate in and support the Youth Voices Initiative. In Part 1, I described the foundations of the Youth Voices Initiative, overseen by the BC Family Justice Innovation Lab, which aims to improve the well-being and resilience of children and youth who are experiencing parental separation. I tried to connect the dots between the child rights provisions, Adverse Childhood Experience research, the importance of c...
Tags: Instagram, Law, Don, Dispute Resolution, Kari D Boyle, Nancy Cameron, BC Family Justice Innovation Lab, Jane Morley, Instagram @youth_voices_bc, Youth Leadership Group, Follow Youth Voices ' Instagram


Youth Voices: A Call to Action for Family Lawyers and Mediators–Part 1

This is Part 1 of a two-part piece focusing on how family lawyers and mediators can participate in and support the Youth Voices Initiative. It has been 10 years since Brené Brown published her book The Gifts of Imperfection. In Brené’s words: This book was an invitation to join a wholehearted revolution. “A small, quiet, grassroots movement that starts with each of us saying, ‘My story matters because I matter.’ Revolution might sound a little dramatic, but in this world, choosing authenticity a...
Tags: Law, Trauma, Voice, Brene Brown, Vancouver Sun, Brené, Dispute Resolution, Kari D Boyle, Nancy Cameron, Jane Morley, UNCRC


Delay and Access to Justice: Revisited

“…Why, some of the work that I have by me now has been in my possession for years and years, and there isn’t a fingermark on it. I take a great pride in my work; I take it down now and then and dust it. No man keeps his work in a better state of preservation than I do.” Jerome K. Jerome, Three Men in a Boat (To Say Nothing of the Dog) In my last Slaw column I wrote about the potential impact of the Supreme Court’s decision on delay in criminal proceedings (R. v Jordan). In that column I wondered...
Tags: Supreme Court, Law, Court, Canada, Court of appeal, Jordan, British Columbia, Saskatchewan, Supreme Court of Canada, R, Jerome K Jerome, Mauldin, Dispute Resolution, Lebel, Columbia Court of Appeal, Hryniak


Uber v. Heller: An “Agreement Not to Arbitrate” Is Unconscionable

Much has been written over the past weeks about the Supreme Court of Canada decision in Uber v. Heller, one of the most anticipated decisions of the year – at least in arbitration and employment law circles. I won’t go into a detailed analysis of the decision in the face of much more learned comments. But I do want to suggest that the Court provides some practical lessons for those drafting and those seeking to engage (or avoid) arbitration agreements. First, and most important, don’t try to use...
Tags: Uber, Law, Court, US, New York Times, Netherlands, Amsterdam, Icc, Brown, The Supreme Court, Abella, Supreme Court of Canada, Cory, Rowe, Heller, American Arbitration Association


Jigsaw Puzzles and System Change

Since mid-March, my husband and I have been trying to “stay safe, stay home”. But it wasn’t until May that I decided to try a jigsaw puzzle. I’m now on my fourth puzzle and offer some reflections on how jigsaw puzzles can illuminate the challenge of deep system change: Open mind: To make it harder I put the box away and I don’t look at the photo of the finished puzzle until I’m done. This seems closer to the reality of system change. We try not to have a particular image or solution in mind...
Tags: Law, Dispute Resolution


Zooming in on the Importance of Upholding Legal Values in Virtual Trials

The current COVID-19 pandemic has forced us to move many of our daily activities online. Trials have been no exception to this transformation, relying on platforms such as Zoom to give people their day in court (to be clear, Zoom is not the only platform to have been used by the courts, but, according to a survey done by Norton Rose Fulbright, it seems to be one of the most prevalent). As demonstrated by some of the cases that have gone forward in this fashion, the use of videoconferencing in co...
Tags: Florida, Justice, Law, Canada, Zoom, Bailey, Lawrence Lessig, Norton Rose Fulbright, Joel Reidenberg, Dispute Resolution, Jane Bailey, Amy Salyzyn, Internet Registration Authority, Dennis Bailey, David Tait, Giampiero Lupo


New Med-Arb Rules and Professional Designation for Canada

The ADR Institute of Canada (ADRIC) has recently adopted Med-Arb Rules and announced a new (C.Med-Arb) professional designation to enhance the use of med-arb in Canada. The new Rules and professional designation recognize that med-arb is a distinct process that is different from either mediation or arbitration on their own. In med-arb, the same person acts as both mediator and arbitrator, typically endeavouring to help the parties settle their dispute in a first mediation phase, then making a ...
Tags: Law, Court, Canada, Karam, McClintock, Dispute Resolution, ADR Institute of Canada ADRIC, Adric, C Med Arb


Construction Mediation is Exhausting, but Worth It!

Originally posted 2010-12-27 09:00:05. Here at Construction Law Musings, we have discussed mediation from numerous angles.  From a great Guest Post from Vickie Pynchon (@vpynchon) on Ways Your Construction Mediation will Fail to my own personal musings on the subject. All of the thoughts from these posts flooded to mind during one long mediation experience recently.  The parties had already tried a court sponsored mediation that lasted maybe an hour and, a few months later, were ready to charg...
Tags: Law, Contract, Construction, Lawyer, Richmond VA, ADR, Mediation, Dispute Resolution, Construction Law, Business of Construction, Vickie Pynchon


Learning From “Building Planes in the Sky”

My heart goes out to everyone – because everyone is affected by the COVID19 pandemic in some way, personally, professionally, or both. At the risk of seeming insensitive, this situation is both a tragedy and an opportunity. In terms of my work life, what is weighing most heavily on my mind is how we can use this opportunity to reimagine the family justice system and replace it with something new. As many have already pointed out (here and here for example), the COVID19 crisis is exposing signifi...
Tags: Justice, Law, Time, Canada, Michigan, Churchill, Rahm Emanuel, Richard Susskind, Tamarack, CRT, Susskind, Jordan Furlong, Dispute Resolution, Ian Mulgrew, Julie Macfarlane, David Eby


What Is Non-Adversarial Advocacy?

There is no provision in the that specifically regulates non-adversarial advocacy. The Code has an Advocacy section (R 5.1) and it distinguishes advocacy in an adversarial process, but it does not have a corresponding section for advocacy in a non-adversarial process. There is no universal definition of non-adversarial advocacy. In 2016, I conducted empirical research on advocacy in the family law context, and drawing from that I argued that the Code needs to be updated to include non-adversar...
Tags: Law, Fidelity, Princeton University Press, Princeton, Aba, Legal Ethics, Fisher, London UK, UBC, R, Macfarlane, Dispute Resolution, Noel Semple, William Ury, Ury, Julie Macfarlane


Six Ways to Ensure Your Construction Mediation Will Fail

Originally posted 2011-10-31 09:00:15. For this week’s Guest Post Friday, Musings has a real treat. Victoria Pynchon mediates and arbitrates complex commercial litigation, including multi-party construction disputes, for ADR Services, Inc. in Los Angeles, California. She blogs about negotiation at the Settle It Now Negotiation Blog and about the mediation and arbitration of intellectual property disputes at the IP ADR Blog. You can also follow her on Twitter here. Update:  Victoria has started ...
Tags: Law, Virginia, Guest Post, Victoria, Construction, Richmond, Los Angeles California, Richmond VA, Vickie, ADR, Mediation, Victoria Pynchon, Dispute Resolution, Guest Post Friday, Construction Law, ADR Services Inc


Re-Thinking How We Resolve Disputes in a Time of Global Pandemics and Climate Change

In person if necessary, but not necessarily in person… The Superior Court of Justice in Ontario issued a notice on March 13, advising people not to go into any courthouse, if they have been advised to self-isolate in response to the growing COVID-19 pandemic. The courts remain open to the media and public (this may have changed since I wrote this…) but anyone who has COVID-19 symptoms, has been advised to self-isolate, or has travelled from an area under a travel advisory should stay away. This ...
Tags: New York, London, Sweden, Law, Toronto, Canada, New York Times, Paris, Vancouver, Department Of Justice, North America, Skype, Danny DeVito, Ontario, Delos, Nicholas


An Inspiring Resource for the “Dispute Resolution Movement”, and Some Thoughts

Kudos to Professor John Lande (one of my heroes in the conflict management field) for his newest publication: Theories of Change for the Dispute Resolution Movement: Actionable Ideas to Revitalize Our Movement. John’s Indisputably Post February 7th provides a great overview of this unique volume – available for free. It arose out of John’s worry about the future of ADR in legal education and his sense of discontent with the “usual” conference formats – you know the kind, lots of interesting pane...
Tags: Law, John, ADR, Dispute Resolution, John Lande, ADR Movement System


We Need More Evidence-Based Research on Mediation in Canada

Research in New Zealand sheds light on commercial mediation in that country, and highlights the lack of hard data on mediation in Canada. Grant Morris, law professor at Victoria University of Wellington, New Zealand, published From Anecdote to Evidence: The New Zealand Commercial Mediation Market, in 2017. (Hat tip to mediator/arbitrator Rick Weiler (@Medarbman) for retweeting a commentary on the NZ paper from a US bankruptcy attorney, which drew my attention to this interesting research.) Profe...
Tags: UK, England, Law, Wales, Time, US, Canada, New Zealand, Nz, Morris, Dispute Resolution, University of Missouri School, Victoria University of Wellington New Zealand, Rick Weiler


How Are We Doing on the Shift to Use-Centred Approaches?

In 2015 I wrote a Slaw post entitled “What Does a “user-centred” Approach Really Mean??” I tried to paint a picture of what “user-centred” means in the context of the BC justice system. I would say it was a good first try but drew mostly on examples from other sectors. Four and a half years later, we have more local examples of how the BC justice system is shifting towards a more user-centric approach including the following: ONE: The first example is the work of Access to Justice BC (A2JBC). It...
Tags: Law, Dispute Resolution, Robert Bauman, United Nations Convention, Leadership Group, Teresa Matich


Towards Cyberjustice Retrospective, Part 5: What the Future Holds

As promised in our previous post, we are back to discuss the fourth and final chapter of our upcoming report detailing the pursuits of the “Towards Cyberjustice” Project (the other parts can be found here: part 1, part 2, part 3). Whereas our previous posts highlighted the various papers, studies and pilot projects conducted by the Cyberjustice Laboratory and its partners throughout this seven-year long venture, our final post is dedicated to the future avenues of research that were inspired by ...
Tags: Law, Canada, Dispute Resolution, Cyberjustice Laboratory, Social Science and Humanities Research Council, Cyberjustice Technologies