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.
Canadian Report Encourages Specific Training and Standards for Elder Mediation Keith Seat
In the growing area of elder mediation, which now includes mandatory mediation of adult guardianship issues in British Columbia, a new report calls for mediation practice guidelines, training and ethical standards. The report from the Canadian Centre for Elder Law emphasizes the heightened sensitivity and skill needed by mediators. Ethical issues include determining whether parties have the capacity to participate meaningfully in mediation, the need for legal representation and questions of abuse and neglect.
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 Keith Seat
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 Keith Seat
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 Keith Seat
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 Keith Seat
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.
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
5/20:Lawyer Says RCMP Refuses To Mediate Harassment Suit
A lawyer representing 300 women who worked for the RCMP alleging harassment and gender-based discrimination in a lawsuit says the national police force is declining an offer to mediate. read
4/22:Organic farms rethink unpaid internships after back pay mediation
Some organic farmers are rethinking taking on interns this growing season after a Vancouver Island farm was forced to pay thousands of dollars in back wages to unpaid workers. read
3/24:Common sense, international catchet put Canadian arbitrators at top
The arbitration business is growing in Canada, and this year’s Chambers Global list of Canadian top arbitrators demonstrates that Canada is home to some of the world’s best. read
3/18:Canada to mediate in Barrick Gold-Dom. Rep. contract row
Dominican Republic on Monday accepted the Canadian government’s proposal to mediate in the conflict over contractual terms under which Barrick Gold operates the mine in Pueblo Viejo, Cotuí (northeast). read
3/05:Mediator Proposes a Recess in Airport Negotiations
Following a recess in the negotiations that began back on February 16th, the federal mediator has decided not to bring the parties back to the bargaining table at this time. There was no progress achieved toward ending the 6 month old strike. read
2/26:Mediation might be the next step in a human rights battle
The next step in a human rights battle between a Saskatoon man and city hall could come down to mediation before a formal hearing by the Saskatchewan Human Rights Commission (SHRC). read
2/11:Calling in a mediator helps solve conflicts
Third party brings "fresh eyes to beef." 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. read
1/24:Nortel mediation talks about $9B in assets fail; retirees angry
Creditors of Nortel Networks, the defunct telecommunications company, failed to agree on how to divide about $9 billion in cash, the Canadian judge overseeing the mediation said Thursday. The news angered retirees in Canada. read