This paper looks at the problem of diminishing access to family justice in British Columbia from a court users perspective, and the interplay of dispute system design and culture in terms of helps and hindrances to these innovation efforts.
There is an audio file stored on my mom’s computer, labelled “The Bad Call.” It’s a recording of a two-minute call between her and me on Sept. 9, 2009. I had, at that point, been a hostage in Somalia for over a year.
For more than a decade, Colorado has worked to provide access to justice (ATJ) for its indigent and modest means citizenry. Despite efforts by the bar and the courts, the state continues to struggle in its pursuit. What has been so often overlooked, however, is how mediation provides the courts and litigants an affordable, efficient option to resolving many disputes.
In this address, Professor LeBaron explores how special education dispute resolution professionals can contribute to educational cultures of inclusion and creativity.
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.
JD Supra (May 15, 2012); Civil Resolution Tribunal Act
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 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.
Financial Post (April 30, 2012)
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 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.
The Star.com (October 31, 2011)
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.
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.
Stikeman Elliott LLP (November 5, 2010); Law Times (December 6, 2010)
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.
Law Times (October 18, 2010)
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.
Lawyers Weekly (September 3, 2010)
Diane J. Levin
Yesterday I pointed readers to an electrifying series by commercial mediator and arbitrator, Victoria Pynchon, which rips the lid off the ADR profession’s secret and unacknowledged shame: the absence of women and minorities from the prestigious ADR panels:
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.
Watertown Daily Times (November 5, 2009)
Michelle LeBaron shares that mormon communities would historically handle conflicts by following the admonitions of the priesthood.
Michelle LeBaron expresses her thoughts on why the mediation field may be more ethno-culturally diverse in Canada than in the United States.
Michelle LeBaron shares her views on the differences between how the mediation fields in America and Canada have been shaped and practiced.
Michelle LeBaron talks about Americans' attitude of risk-taking and Canadians' vast cultural awareness, which make for different dispute resolution processes.
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.
Canada Newswire (July 3, 2008) (Subscription Required)
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.
Law Times (October 15, 2007)
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.
Globe and Mail (Toronto Can.)(May 16, 2007)(Subscription Required)
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.
The Ottawa Citizen (March 13, 2007)
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.
Financial Post (March 18, 2007)