British Columbia Proposes Online Dispute Resolution Tribunal Keith Seat
The Ministry of Justice for British Columbia has introduced the Civil Resolution Tribunal Act to establish a tribunal to provide online dispute resolution services. The legislation would establish an escalating four-phase process in which participation would generally be voluntary. Parties would first rely on self-help using interactive online tools, the second phase would move to assisted negotiations online, while the third phase would include intervention by a case manager. The final phase would be a tribunal hearing, which could also be online, with final tribunal decisions filed in court and enforceable as court orders, with only limited judicial review. Parties would not be allowed to use legal counsel, except in limited circumstances; Canadian lawyers’ associations oppose the legislation.
Time to Connect With Our Roots Susanna Jani These are interesting times in the BC justice sector. The BC Justice Review, led by Geoffrey Cowper Q.C., is continuing, the Ministry of Justice tabled Bill 44 (the Civil Resolution Tribunal Act) in early May and the criminal prosecutions from the Vancouver riot in June 2011 are crawling along through the system. It causes me to ponder the role of the Dispute Resolution (“DR”) community in all of this. How can we make a difference? How can we help to improve access to justice for BC citizens?
Canada Allows Banks to Use Private Mediators in Client Disputes Keith Seat
Canada has decided against forcing banks to use the Ombudsman for Banking Services and Investments (OBSI) and will provide new regulations permitting them to hire private mediators to resolve client disputes. OBSI was created in 1996 to handle complaints against banks and since 2002 has also been responsible for resolving investment complaints; investment dealers are still required to use OBSI. The issue arose after Canada’s two largest banks, the Royal Bank of Canada and Toronto-Dominion Bank, withdrew from OBSI in favor of private mediation and other banks were expected to follow. However, some consumer advocate groups and regulators are concerned that if banks hire private mediators the independence of the mediators could be compromised.
My “Big Three” BC Family Law Information Powerhouses Susanna Jani It comes as no surprise that many of our readers have been wondering about British Columbia’s new Family Law Act. I confess to wondering about it also. It has been quite a few months since it received Royal Assent, and the suspense about it is beginning to grow.
Canada’s Banking Ombuds Calls on Regulators to Require Banks to Mediate Client Disputes Keith Seat
Canada’s Ombudsman for Banking Services and Investments (OBSI) is asking regulators to mandate that banks continue to use the independent national agency to settle any disputes with clients that the banks cannot resolve internally. The issue arose after Toronto Dominion Bank announced plans to withdraw from OBSI and begin using another ADR service which Royal Bank of Canada has been using since it left OBSI three years ago. OBSI was created to handle complaints against banks and since 2002 has also been responsible for resolving investment complaints.
Beyond Adjudication: Resolving International Resource Disputes in an Era of Climate Change Anna Spain Climate change is one of the greatest emerging threats to global peace and security. Among other impacts, climate change will exacerbate the scarcity of water, food, and other natural resources essential to human survival. One concern is that as these resources become scarcer, the frequency and severity of international disputes will increase. Thus, developing effective means for resolving international resource disputes is of critical global importance.
Second Canadian Province Enacts Commercial Mediation Statute Keith Seat
Ontario has followed Nova Scotia in enacting a statute specifically addressing commercial mediation. Ontario’s Commercial Mediation Act of 2010 permits agreements reached in mediation to be registered and enforced as court judgments. Commercial mediation does not include disputes over insurance benefits, collective bargaining disputes, computerized mediation or informal attempts by judges or arbitrators to encourage settlement while presiding over litigation or arbitration proceedings. The statute requires certain disclosures by mediators relating to possible conflicts and bias and sets forth mediation confidentiality requirements. The statute is based on the UNCITRAL Model Law on International Commercial Conciliation, which has also been incorporated by several states in the U.S. when enacting the Uniform Mediation Act. The Ontario statute focuses on pre-litigation mediation and does not apply to the mandatory mediation provisions of the Rules of Civil Procedure. The statute took effect with commercial mediations that commenced on or after October 25, 2010 in Ontario or even outside the province if the parties stipulate coverage of Ontario law.
Ontario Appellate Court Penalizes Refusal to Mediate Keith Seat
The Ontario Court of Appeals imposed a $40,000 penalty on an insurance company for refusing to mediate a personal injury case it considered to be outside the statutory requirement for mediation. The lower court found that the case was within the statutory threshold, but accepted the insurer’s position as legitimate. However, the appellate court took a harder line in imposing the penalty and emphasized the requirements of participating in mediation and attempting to settle expeditiously.
Ontario Chief Justice Calls for Greatly Expanding Judicial Mediation Keith Seat
Ontario Chief Justice Warren Winkler proposed in a lecture which will be published this fall that the increasing cultural shift towards mediation requires that the court system adapt by providing judicial mediation in civil cases as a routine matter. The Chief Justice is concerned that without much more mediation by judges the court system will lose relevance. In addition, he believes that courts need to provide direct mediation services so that the benefits of mediation are not limited to those who can afford private mediators. The Chief Justice notes that judges are often in the best position to mediate cases because parties take judges’ views seriously. On the other hand, he notes that there are many hurdles to be surmounted, such as courthouses not designed for handling mediations in large numbers, mediations often continuing beyond court hours, and sitting judges who may have neither the aptitude nor desire to be mediators.
Tribe Seeks Mediation of Ongoing Dispute with Canada Border Services Agency Keith Seat
A dispute over the arming of Canada Border Services Agency officers at a station on the reservation of the Mohawk Council of Akwesasne has festered for many months despite attempts at dialogue and visits by several Members of Parliament. The tribe has been suggesting mediation since the beginning of the conflict. Both sides may finally be leaning toward mediation as the only way to resolve the issues.
Mediation Resolving Psychological Harassment Complaints in Quebec
Mediation successfully reaches agreement in 95% of the workplace psychological harassment cases mediated by the Commission des norms du travail in Quebec. In the four years since legislation was enacted protecting employees from psychological harassment, about 8,600 complaints have been filed and a little over a third have been resolved through mediation. Of complainants using mediation, 85% reported they were very satisfied with the mediator’s work.
Mediation Defense Fails to Prevent Criminal Penalties Flowing from Unauthorized Practice of Law in Canada
A paralegal was sentenced to four months of house arrest for contempt of court in Ontario after violating a permanent injunction prohibiting the practice of law. The paralegal unsuccessfully asserted that she was merely involved in mediation, which is not regulated, because she advertised that she could prepare legal documents and provide services relating to uncontested divorces.
Toronto Judge Avoids Court Meltdown by Enhancing Mediation Programs
Facing a potential “meltdown” of the Toronto court system, which is the third largest in Canada, Justice Warren Winkler introduced a three-phase mediation system to encourage parties to settle, and created specialized pools of judges to mediate in specific areas. Even with 30,000 civil lawsuits being filed annually, wait times for long trials are now down to one year, compared to three years in 2004 when Justice Winkler was appointed Senior Regional Justice.
Canadian Music Society to Mediate with Artistic Director
The Ottawa Chamber Music Society is preparing to mediate with its popular artistic director, Julian Armour, who recently resigned. The plan for mediation came out of a meeting of more 300 concerned music lovers, and may include a longer-term role for the mediator to assist with other organizational issues.
Businesses Increasingly Seeking Mediation in Canada
Business disputes in Canada are increasingly turning to mediation, and more mediators are available to resolve them, according to the ADR Institute of Canada and others. Both attorneys and business people are recognizing that mediation can provide better and more subtle solutions to complex business disputes than going to court, as well as saving time and money. Full blown litigation is seen more and more as costly brinkmanship. Ten years ago, Canadian Supreme Court Justice George Adams shocked colleagues by stepping down from the bench to begin a mediation practice, but he has seen lawyers become much more sophisticated in planning for and using mediation over the last decade.
Under a new pilot aimed at reducing unrepresented family litigants and improving outcomes, Legal Aid Ontario (LAO) will cover the cost of a family lawyer to support clients who choose mediation and to transform those agreements into legally-binding documents. "In looking at expanding access to justice for low-income Ontarians, mediation is a good alternative to having a judge or a third party step in to resolve family relationship issues," says John McCamus, Chair of LAO. "This voluntary process empowers people to resolve their family legal issues for themselves - and with this pilot, they can be assured that the end result is legally binding." read
Family law continues to evolve in British Columbia with new regulations providing for accreditation for those who wish to provide services in alternative dispute resolution. Among the ways people can work as family mediators, arbitrators, or parenting co-ordinators is through organizations such as the Law Society of British Columbia or Mediate BC. Kari Boyle, executive director of Mediate BC, says the regulations under the new Family Law Act that took effect Jan. 1, have significantly altered the field of family dispute resolution in the province as they give “the public a safe place to find mediators if they want.” “The act is clearly sending a message that families should first opt to try some of the out-of-court solutions,” she says. read
After more than a decade as friendly neighbours, two Scarborough families have become locked in a bitter feud that blew up last week in an offensive lawn sign and visits from police. The cordial relationship between John Corcoran, 81, and Vicky Downing, 47, began to unravel over a year ago when he supported her ex-boyfriend during a messy breakup. Both neighbours say they have called the city and police several times to report alleged wrongdoing but the bad behaviour persists. Neither was sure how to dial down the over-the-fence tension until police suggested last week they try formal mediation. They agreed, in theory, but have yet to start. read
Manitoba will set aside up to $40,000 a year to help deaf children participating in amateur sport communicate with their teammates, coaches and game officials following a human rights complaint. Two parents of deaf children initially approached the Manitoba Human Rights Commission complaining that lack of money for sign language services made it harder for some deaf children to participate in sports. The parents said the lack of interpretive services meant their children couldn’t participate fully in sports, develop leadership skills and have the same advantages as their peers. All parties agreed to mediation through the commission and came up with a solution. read
“We’re just being reasonable”; “Come on, be rational!”; “You’re not thinking clearly!” Lawyers and parties often make or hear statements such as these in the course of litigation — especially when attempting to negotiate a settlement with the opposing side at mediation. Yet how do people really know when they are engaging in rational thinking? Do lawyers unconsciously enable their clients to engage in poor reasoning leading to poor decisions? read
The Civil Resolution Tribunal will ensure a low cost and effective resolution of such disputes, based on a law that establishes principles of collaborative forms of adjudication, instead of litigation on an adversarial basis. This is but one example of a major trend: courts are moving their services online. read
7/03:Workplace mediation calms conflict
Calling in help to settle dispute not a sign of failure. When Marjorie Munroe usually gets the call from a frustrated boss or an irritated human resources manager, it's usually about six months later than she would have liked. "By the time I get into the workplace, things have gotten pretty out of hand, so they call me when it has escalated," says Munroe, a chartered mediator, referring to a conflict between employees or teams. As the co-director of Workplace Fairness Alberta, she's trying to get the word out that calling in a mediator doesn't mean the manager or supervisor has failed at his or her job. Rather, it's an effective way to avoid nasty disputes between coworkers from escalating and potentially leading to one party leaving the organization.
6/26:Stormy marriage of Regina, neighbouring Sherwood to undergo mediation
It’s like a stormy municipal marriage, soon to undergo counselling to help both partners grow together. The city and neighbouring Rural Municipality of Sherwood are slated to begin mediation in an effort to smooth over growth and boundary issues, as planning proceeds for a massive development just southeast of Regina. read
5/29:How to sabotage a mediation: An impractical guide for lawyers
Memo to senior partner: If you follow a few or more of these suggestions then the mediation is bound to fail despite the mediator’s best efforts. read
5/20:Group calls for uniform international arbitration rules
Lawyers are hoping for more consistent rules for international arbitration across Canada as plans are in the works to smooth out differences between the provinces and territories. A working group is looking into creating consistent laws throughout the country on issues from the power of arbitral tribunals to make ex parte orders to whether it’s appropriate to have the same limitation periods everywhere in Canada. It’s a step toward making Canada an “arbitration-friendly” country, says Gerald Ghikas, a commercial arbitration lawyer at Vancouver Arbitration Chambers who’s also chairman of a working group that’s proposing the changes. read