The ADR Perspectives e-newsletter is one of two official publications of the ADR Institute of Canada Inc..
With a cross-Canada Editorial Board of some of the foremost mediators and arbitrators in the country, the ADR Perspectives newsletter is intended to be useful and relevant to ADR end users, by publishing short articles with a practical focus containing suggestions and general advice on arbitration, mediation, and other ADR topics.
The inaugural issue was published in electronic format in March 2014, with a total of four issues to be published annually.
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Welcome to the twenty sixth issue of the ADR Perspectives newsletter.
This issue includes articles about chess clock arbitrations, med-arb, arbitral appeal rights, and the jurisdiction of mediators and arbitrators over winding-up and liquidation proceedings. The authors are mediators, arbitrators, and counsel, from Calgary, Montreal, Toronto, and the Greater Toronto Area.
Also, Bill Hartnett has decided to step down from the Editorial Board. The Editors would like to recognize the substantial contributions that Bill has made to this newsletter. It cannot get any more fundamental. In addition to everything that Bill has done during his career to advance the use of ADR in Canada generally, this newsletter was Bill’s idea, and he has been a valuable member of the Editorial Board from the outset. Thank you very much Bill.
As always, we encourage you to submit an article, in French or in English, on topics of interest to the ADR user community in Canada, especially in the field of mediation.
|Med-Arb – The Third Alternative / Médiation-arbitrage : la troisième voie
Med-Arb, which has a long history of use in labour and family law disputes, is finally receiving the attention it deserves in Canada as an innovative, well-designed stand-alone process and not just a cobbled together mash-up of mediation and arbitration. One of the major critiques of med-arb has been a significant unease over one neutral acting as both mediator and arbitrator in the same dispute. The alternative of using two separate neutrals significantly increases costs. In this article, an alternative model is presented using one neutral as med-arbitrator but providing an opt-out provision at the end of the mediation phase.
|The Use of a Chess Clock in Arbitration Proceedings
By Harvey J. Kirsh, B.A, LL.B, LL.M, C.S, C.Arb
The cost of a chess clock generally ranges from $20 to $300, and could be precision analog or digital; mechanical or quartz; wood, plastic or steel; and wind-up or battery-operated. They are typically used to facilitate chess play; but, as indicated in this article, they can also be employed as a time management technique, along with time limits and a few firm rules, to reduce the cost and length of an arbitration proceeding.
|Alternative Forum For Liquidation: Has a Door Opened For Winding-up Proceedings to Head Towards Arbitration?
In the Province of Quebec, it is well settled law that an arbitration clause in a shareholder agreement could not interfere with the exclusive jurisdiction of the Superior Court of Quebec to force liquidation proceedings, but a recent change in statutes has now caused the Superior Court of Quebec to revise its approach and consider whether liquidation proceedings can be subject to an agreed mediation process.
|The Importance of Context to Importance – Seeking Leave to Appeal from an Arbitral Award
Whether a party can obtain leave to appeal is largely dependent on the basis for the appeal. Although the Arbitration Acts in certain provinces allow for an appeal, the application of the appeal provision has produced unpredictable outcomes. Many provinces, such as Saskatchewan, have adopted provisions to allow parties to a contract some certainty by permitting them to contract out of appeals on issues of fact, law, and mixed fact or law. However, other provinces, such as Alberta, have not. Until legislators take notice of the unpredictability caused by the lack of uniformity, parties in Alberta that include binding arbitration terms in their contracts will continue to face possible appeals to the courts.
Welcome to the twenty fifth issue of the ADR Perspectives newsletter.
This issue includes articles about arbitration and med-arb from in-house counsel, arbitral counsel, arbitrators, and mediators in Vancouver, Calgary, and Toronto.
We would be pleased to consider your submissions, in French or in English, on topics of interest to the ADR user community in Canada, especially in the field of mediation.
|In Defense of Tiered Dispute Resolution Clauses
By Mary E. Comeau
Tiered dispute resolution clauses are often maligned as causing delay and not being effective. However, though no formal analysis is available, the experience of some commercial litigators and business managers would suggest that, when carefully drafted, these clauses are a valuable tool to battle some of the human issues that come into play in resolving complex disputes.
By Alexandra Mitretodis & Brock Euper
In the context of lower value claims or less complex disputes, expedited or fast track arbitrations provide a faster and more inexpensive way to resolve disputes. Expedited arbitrations can eliminate the need for an oral hearing, mandate shorter submissions, and implement more efficient procedures. They are also usually decided by a sole arbitrator, which can save costs and avoid delays. Further, expedited arbitrations can result in an award within 3 to 6 months from the start of the proceedings (as opposed to 12 to 18 months for many traditional arbitrations).
|Transitioning from Civil Litigation to Arbitration
By Hon. Clifton D. O’Brien, Q.C.
When civil litigation is agreed by the parties to be transitioned to arbitration, counsel have both an opportunity and an obligation to carefully canvass the procedural rules to be selected to govern the arbitral proceedings. Working together with the tribunal, the parties and their counsel are in a position to tailor the procedural rules to best achieve a fair and efficient determination of the issues.
| A View from the Nose-Bleeds
By Weston Rudd & Brock Carscallen
Compromise is necessary when settling disputes, but from the perspective of in-house counsel, when it comes to arbitration, the focus of the arbitrator should be on making fair and final procedural decisions. By the time the parties reach arbitration, they have already made extensive efforts to settle and their interests are best served by a firm but fair decision-maker who will follow the dispute resolution agreement and who will bring closure to the dispute.
|Overlapping Arbitration and Litigation: When Can the Court Step In
By Andrew Sunter & Susan Fader
Courts have the power to enforce arbitration agreements and stay litigation in favour of arbitration. But can the reverse be true—can an arbitration be stayed in favour of litigation to avoid a multiplicity of proceedings? This article studies Canadian Natural Resources Limited v Flatiron Constructors Canada Limited, 2018 ABQB 613, where the Court stayed an arbitration and allowed overlapping litigation to proceed first. We explore the risks associated with parallel litigation and arbitration with overlapping issues, including how the Court deals with subrogated claims, litigants who are strangers to arbitration agreements, and concerns and risks inherent in overlapping proceedings.
|Two Hats, or Not Two Hats?
By Lauren Tomasich, Eric Morgan & Sarah Firestone
Working with an arbitrator who also acts as the mediator can present unique challenges but also benefits. This article considers how arbitration legislation applies to this issue and explores the pros and cons of having the same person act as both mediator and arbitrator.
Welcome to the twenty fourth issue of the ADR Perspectives newsletter.
This issue includes articles from arbitral counsel and arbitrators in Vancouver, Calgary, Toronto, and Paris, France.
We would be pleased to consider your submissions, in French or in English, on topics of interest to the ADR user community in Canada, especially in the field of mediation.
|The Independent Arbitrator: Challenging Arbitrator Independence
By Earl A. Cherniak, Q.C., LL.B, FCIArb & Rebecca Shoom
An arbitrator must be independent, so that the parties to a dispute have confidence in the adjudication process. When disputes arise as to the independence of a proposed nominee, the parties must find a way to resolve them so that the arbitration can proceed efficiently. This article reviews an arbitrator’s disclosure obligations, and the avenues available where a party wants to challenge a nominee’s independence, or where the parties cannot agree on an arbitrator. Practical examples of how such disputes have been resolved in prior arbitrations are included to demonstrate the creative solutions that are available.
|Arbitral Claims and Insolvency Proceedings
By David Gruber, FCIArb, IIC
A recent decision of the Ontario Superior Court in the Companies’ Creditors Arrangement Act (“CCAA”) proceedings of Sears Canada Inc. highlights an intersection between party autonomy principles established under the law of arbitration and insolvency law. At issue was whether the price under an option should be determined by an arbitrator appointed under Ontario’s arbitration legislation or whether instead it should be determined by a “claims officer” appointed by court order in the CCAA proceedings.
|References and Construction Claims
By Harvey J. Kirsh, B.A. (Tor.), LL.B. (Osg.), LL.M. (Harv.), C.Arb., C.S.
Many government infrastructure projects in Canada now call for the appointment of a “Referee” and for the use of an alternative dispute resolution process called a “Reference” for the relatively informal resolution of disagreements, claims, and disputes arising out of the project agreement. It has worked effectively in Ontario, Nunavut and elsewhere.
|The Legacy of HOOPP – The Perils of Limitation Periods in Arbitration
By Dalton W. McGrath, Q.C., FCIArb & Michael C. O’Brien
It has been approximately five years since the Alberta Court of Appeal in AG Clark Holdings Ltd v HOOPP Realty Inc released its decision confirming that when parties have agreed to a mandatory arbitration clause to resolve their disputes, filing a Statement of Claim with the courts within the applicable limitation will not preserve the claim. Since its release, the decision has been cited in dozens of cases in Alberta and appears to be gaining traction outside of Alberta. Counsel are commended to read that decision (and this article) to avoid missing important limitation dates.
|New ICSID Rules-An Update
By Sara Nadeau-Séguin, LL.B., LL.M.
On 19 August 2019, the International Centre for the Settlement of Investment Disputes (ICSID) released a third working paper on proposed changes to the arbitration rules between States and foreign investors, following consultation with states and the public over the past year. This most recent proposal is reviewed in this article.
Welcome to the twenty third issue of the ADR Perspectives newsletter.
This issue includes arbitration and mediation articles from Calgary and Ottawa. The issue includes an article on mediation and three articles offering different perspectives from an arbitrator, an expert witness, and counsel, on the use of expert evidence in arbitration.
We would be pleased to consider your submissions, in French or in English, on topics of interest to the ADR user community in Canada.
By Steven C. Gaon, C.Med
Is an accusation of harassment equivalent to culpability? This article looks at the significant increase in harassment complaints coinciding with the Me Too Movement, as many ADR professionals take on the role of harassment investigators. The author examines the need to encourage victims of sexual and other forms of harassment to come forward against the need for…
By Jack Marshall, QC
Once the legal threshold has been met for admitting expert evidence, care must be taken by counsel in fully briefing the expert witness. It is critical that the expert give impartial and unbiased testimony and not simply be a part of the advocacy team. The expert must remember that while he or she is an expert, the tribunal in many cases is not. Accordingly the witness must speak clearly and slowly enough that the tribunal is able to follow what might be highly technical evidence. Always remember that it is the tribunal that renders the Award and the expert must ensure the tribunal has followed the evidence…
By Bailey Rivard, CPA, CA·IFA, CBV, CFE, CFF
In complex technical matters, a subject-matter expert is often retained to assist counsel and the trier of fact in understanding the issues outside the law. This expertise can help translate complex information, so it tells a story relevant to the issues in dispute. To make the most effective use of experts in ADR proceedings, counsel should consider key tips and traps to avoid from the perspective of an expert.
|The Expert Use of Experts in ADR: Views from Counsel Table
By David Tupper & Keith Marlowe
The expert use of experts and their reports in mediations and arbitrations is often the factor that can win or lose a case. Counsel discusses the do’s and don’ts of retaining, preparing, and using experts in ADR.
Welcome to the twenty second issue of the ADR Perspectives newsletter.This issue includes arbitration and mediation articles from arbitrators, mediators, and counsel from across the country and in Paris, France. Please keep the newsletter in mind for articles that you may wish to submit, in French or in English, on topics that you believe would be of interest to the ADR user community in Canada.
|Playing by the Rules of the Game: Arbitration in a Professionnal Sports Context
By Randall W. Block, Q.C., Justine Blanchet, Hon. Thomas Cromwell, C.C.
What happens when collective bargaining agreements and tort law collide? This intersection is increasingly at issue in the context of professional sports organizations. Can arbitration clauses extend to personal injury claims arising in the course of employment? Can Commissioners of professional sports leagues sit simultaneously as disciplinarian and arbitrator? The response from our courts is yes, if the contract says so.
|The Virtually Impossible Task of Obtaining Permission to Appeal Under Section 44(2) of the Alberta Arbitration Act
By Lou Cusano, Gino Bruni, Tanis Makowsky
The Alberta Court of Queen’s Bench has once again confirmed that obtaining permission to appeal an arbitration award under section 44(2) of the Arbitration Act, which applies where an arbitration agreement is silent on an appeal right, will be a virtually impossible task. Parties wishing to have the option of appealing their arbitration awards to the Alberta courts should therefore be reluctant to rely upon this section and should instead include appeal rights in their arbitration agreements.
|The Cost of Refusing to Mediate
By Kathryn Munn, C.Med, C.Arb
We have seen lots of information about using mediation to reduce the costs of resolving disputes. Now in Ontario if you do not use mediation, it could cost you money. According to a 2018 decision by the Ontario Superior Court of Justice when a party in a lawsuit is “unreasonable “ in its refusal to participate in mediation, the Court can reduce the award of costs to that party. This decision is very significant for all types of disputes. Prudent lawyers and parties involved in disputes need to bear this in mind when deciding about the use of mediation.
|Proposed Rule Changes at the Leading Institution for the Resolution of International Investment Disputes
By Sara Nadeau-Séguin
On August 3, 2018, the International Centre for Settlement of Investment Disputes (ICSID) published a comprehensive set of proposed changes to modernize its rules for resolving disputes between foreign investors and states. This article highlights the most important changes proposed to the ICSID Arbitration Rules, which are the procedural rules used to settle disputes between an ICSID Contracting State and nationals of another Contracting State.
|ADR in the Aboriginal Context
By Robert Neron, C.Arb, Q.Med
ADR encompasses mechanisms used in resolving disputes outside of adversarial litigation. Unlike the western-based dispute resolution system that bases its judgment on the evidence adduced, aboriginal ADR seeks to restore collective harmony between both parties in a case. Regardless of their differences, significant value rests in resolving disputes with an indigenous approach that would best suit both parties involved, to ensure that they are both satisfied with the outcome of the judgment. Therefore, the application of aboriginal ADR process to legal disputes would be a useful tool for dispute resolution and improvement of how ADR is conducted.
Welcome to the twenty first issue of the ADR Perspectives newsletter.
In this issue, you will hear from a range of arbitrators, mediators, and counsel, from Vancouver Island, Calgary, Toronto, and London England, on a mix of topics related to mediation, arbitration (including international commercial arbitration), and conflict resolution more generally.
We welcome your submissions for articles of interest to the ADR user community, whether about mediation, arbitration, or otherwise, and whether in French or in English.
| Does an Arbitrator With Subject Matter Expertise Give you a Better Decision?
By Gerald R. (Jerry) Genge
Would you prefer the contentious classic civil court process, or would you rather get it resolved by someone impatient about getting it right? This brief article describes the alternatives and one proven way to move disputes from a looming mountain of paper and process to the rear-view mirror.
|Training Conflict Resolution Practitioners: the Need for New Methods and Approaches
By Evan Hoffman
“This article critically analyzes the training of conflict-resolution practitioners by private corporations, non-profit organizations and academic institutions. In doing so, the strengths of current approaches will be illustrated and ways to improve future training will be identified.”
|Binding Mediation: an Oxymoron?
By Harvey J. Kirsh
“Binding Mediation” is a term dreamed up by a marketing maven. It is med-arb, although some may consider it a wolf in sheep’s clothing.” Daniel Yamshon, FCIArb
The nature of mediation is typically expressed as being consensual, non-binding and without prejudice. So is there room in the spectrum of ADR processes for what some have called “binding mediation”?
|Better Than Average Returns: Making the Most of Your Investment in Mediation Binding
By Emily McCartney & Jim McCartney
Done well, mediation can be a valuable tool for parties to litigation to save time and money, and reach a confidential negotiated settlement of their dispute. Based on our experience as counsel and a mediator, these are the things that lawyers and their clients can do to maximize their chance of success and get the most out of the mediation process.
|British Columbia Amends and Modernizes International Commercial Arbitration Act
By Elizabeth Montpetit
Earlier this year, British Columbia became the second Canadian province, after Ontario, to update its international arbitration legislation in line with the 2006 amendments to the UNCITRAL Model Law. In so doing, British Columbia has aligned itself with modern national and international standards, thereby increasing its appeal and status as an arbitration-friendly jurisdiction. This article discusses the key amendments to British Columbia’s International Commercial Arbitration Act and highlights which provisions deviate from the Model Law, and from Ontario’s provincial legislation.
|Using a “Scott Schedule” in Arbitration
By Neil Wittmann
A Scott Schedule is a precise columnar presentation of the issues to be decided and the position of each party on the issues. Prepared before the start of the hearing, everyone, including the Arbitrator and witnesses, is better equipped to conduct a fair and efficient process.
Welcome to the twentieth issue of the ADR Perspectives newsletter.
This issue is rich with a variety of articles about mediation, arbitration, and expert determination, from Vancouver, Calgary, Regina, Toronto, and Moscow.
Also, we are pleased to welcome Sara Nadeau-Séguin to the Editorial Board. Her international commercial arbitration experience, her connections especially in Quebec, and her bilingualism will undoubtedly lead to valuable contributions to the newsletter.
Finally, we appreciate the continued inflow of articles of interest to the ADR user community. Keep them coming.
| The Apprehension of Bias in Arbitral Proceedings: A Cautionary Tale for Counsel and Arbitrators
By David W. Gibbons
The formalities and decorum obligations found in judicial proceedings may be absent from their arbitral counterparts. However, the consequences of communications outside of the permissible channels for doing so during arbitration can be severe. Ex parte communications between arbitrators and counsel can give rise to a reasonable apprehension of bias that necessarily results in the proceeding being set aside.
|Strategic tips on enforcement for in-house counsel – making sure you get the payment under your award
By Yaroslav Klimov and Andrey Panov
A claimant only goes into battle, expending time and money developing strong arguments and clever case theories, because it expects to secure payment at the end of the day. There are several strategic steps that in‑house counsel can take throughout the process to maximise the chances that the pay day eventually arrives.
By Allison Kuntz
Parties frequently agree to have their disputes determined outside of the courts by way of either arbitration or expert determination. Arbitration is typically used to resolve claims based on disputed facts and law between the parties, while an expert determination is typically used to settle a term of a contract or decide a discreet technical issue. These two types of proceedings are intended to be quite different and have different consequences.
|A Peaceful Protest – An Opportunity for Public Mediation
By Rodger W. Linka
Public Policy Mediation is a facilitated process that is designed to address more complex multi-party disputes of social problems that never seem to be resolved. Across Canada one such significant and persisting issues is the failings of the child welfare system for Indigenous communities. In the following article by Rodger Linka C.Arb, the process is examined through the lens of the protest, Fourteen Teepees, on the grounds of the Saskatchewan Legislature. The case is now heading through the courts to stop the protest. In such an adversarial court process, however, the core problem of Indigenous children in care becomes secondary. A tailored Public Policy Mediation process, on the other hand, can help to address and resolve the substantive interests surrounding the issue of Indigenous children in the child welfare system.
|Fairness and Formality – Mediation Advocacy and the Self-Represented Disputant
By Martha Simmons, PhD
In today’s legal profession, there has been an upswing in the use of consensual dispute resolution processes, like mediation. Coinciding with the increase in the use of mediation, is the increase of self-represented litigants (SRLs) directing themselves through legal processes. More recently, SRLS have begun to avail themselves of unbundled legal services. This trend brings into question the equality and ethics of the mediation process where one party is represented by a lawyer and the other is a SRL. Given this new reality, lawyers must remain cognizant of inequities and re-evaluate how they engage with opposing parties, particularly, non-lawyers.
Welcome to the nineteenth issue of the ADR Perspectives newsletter.
This issue contains articles from Western Canada about third party funding in arbitration, stays of court proceedings in favour of international commercial arbitration, and how to benefit from med/arb processes.
As always, please keep the newsletter in mind for topics on which you would like to submit an article that would be of interest to the ADR user community.
Articles in the mediation and arbitral fields, from across the country, in French or English, are most welcome.
| Med-Arbs – Practical Considerations for Getting the Best of Both
By David Farmer and Steven Kley
Practitioners continue to disagree about the appropriateness of combined mediation-arbitrations, or med-arbs. The clear advantage in asking the same dispute resolution professional to preside over a combined process is that there will be no need for an independent arbitrator to get up to speed where mediation has been unsuccessful. On the other hand, in common law jurisdictions, there are reasons why the usual process is that settlement discussions are conducted separately from any adjudicative process.
|Stays of Canadian Court Proceedings in Favour of International Commercial Arbitration: Recent Trends
By Angus M. Gunn
When litigation arises in relation to a dispute that is subject to an arbitration agreement, the agreement’s efficacy requires that the litigation be stayed and the matter referred to arbitration. This article examines the occasions since 2016 in which Canadian courts have been asked to stay their proceedings in favour of international commercial arbitrations. On each of those occasions, the stay sought by the defendant was granted – affirming the robustly pro-arbitral stance of Canadian law. Despite this uniformity of outcome, the underlying reasons for judgment in these cases identify several themes with which courts continue to struggle.
|Joining the Party—A Primer on Third Party Funding
By Geoffrey D. Holub and David M. Price
The authors discuss third party funding in respect of its suitability for clients, pre-agreement diligence, and the negotiation and drafting of funding agreements. In addition, the authors comment on some practical and ethical issues relating to third party funding agreements.
|Third Party Arbitration Funding: Should You Get Someone Else to Pay for Your Arbitration?
By Courtney Kachur
Parties entering into arbitration agreements do not want to limit their own access to capital in the event that a dispute arises and they need to pay for arbitration. Whether incorporated into the definitive agreement or not, parties and their counsel need to be aware of the drafting considerations associated with third party arbitration funding so that they maintain their freedom to fund their arbitration as they see fit.
Welcome to the eighteenth issue of the ADR Perspectives newsletter.
This issue contains a mix of French and English articles, in the mediation and arbitral fields, from authors across Canada.
As always, please keep the newsletter in mind for topics on which you would like to submit an article that would be of interest to the ADR user community.
| La Loi sur les normes du travail : Mieux s’outiller pour négocier le meilleur règlement possible,
By Justine B. Laurier et Audrey Belhumeur
Chaque année, des milliers de salariés au Québec déposent des plaintes à la Commission des normes, de l’équité, de la santé et de la sécurité du travail (la « CNESST ») pour faire la lumière sur des litiges survenus avec leur employeur ou leurs collègues de travail. Le présent article vise à outiller les employeurs sur les moyens mis à leur disposition afin de faciliter le règlement de ces dossiers, en plus de partager certains conseils pratiques qui augmenteront leurs chances de sortir gagnant d’une médiation ou d’une conciliation en droit de l’emploi.
|Pale, Male, and Stale: Addressing Diversity in Arbitration
By Erin Peters
Diversity in arbitration is a trending topic in the field. Results of a recent comprehensive survey demonstrate that there is good reason for this. Despite increasing attention on the topic, the arbitration scene remains “pale, male, and stale.” But why does increasing diversity matter? Many answers to this lead to the ultimate question: “What can you do about it?”
|Getting Past Impasse with Mediator Settlement Recommendations
By Mitchell Rose
While it’s preferable for parties to a dispute to settle their own case at mediation without a mediator’s settlement recommendation, a recommendation is useful, as a last resort, to break an impasse. The author presents his “No One Gets Hurt” approach to settlement recommendations in the mediation of civil disputes.
|Cybersecurity threats in arbitration are real: Why take a risk?
By Anca M Sattler
As we become more and more dependent on technology and rely on digital records and information to conduct our business, the risks of being hacked or suffer a cyber-attack are ever increasing. The risk of exposure is high in arbitration settings as well, where many parties are involved and security levels of protection vary significantly with each individual receiving information. Protecting data and information may seem like a daunting task when one weak link can undermine any security measures taken by other parties.
|Third Parties to Arbitration Agreements
By David Tupper et Stefani Wesley
Third parties who are strangers to an arbitration agreement, but involved in or allegedly responsible for the underlying issues in an arbitration, can significantly affect the course of an arbitration. Many arbitrations would, if in the courts, be multi-party cases. Typically, however, in an arbitration unless there is a drag-along provision in contracts between, for example, a contractor and a sub-contractor, third parties cannot be compelled to participate. Nonetheless two cases, demonstrate that in certain circumstances, third parties to an arbitration agreement can be compelled to give discovery evidence and may be able to rely on an arbitration clause to stay related litigation.
Welcome to the seventeenth issue of the ADR Perspectives newsletter.
In this issue, you will hear from arbitrators and arbitral counsel from across the country.
Also, Ludmila Herbst has decided to step down from the Editorial Board, and we would like to express our appreciation for her valuable contributions to the newsletter.
As always, please keep the newsletter in mind for topics on which you would like to submit an article that would be of interest to the ADR user community.
Articles on mediation or in French would be most welcome.
|Fast Track Arbitration
By Michael Butterfield
Time is money. When disputes arise, we all look for fast, efficient and fair methods of resolution. Fast track arbitration protocols developed by ADR Canada can save time and money. They provide a framework to resolve many disputes within as little as three months.
| Without Prejudice: an Invisibility Cloak for a Mature World
By Steve Eichler and Chloe Mathioudakis
Without prejudice communications are common to court-based litigation and, its faster, cheaper sibling, arbitration. Arguably, the entirety of mediation is without prejudice since its existence in any dispute is based on joint efforts toward resolution. Yet despite the ubiquitous nature of the phrase itself, confusion still reigns. What exactly does the phrase “without prejudice” mean? Is it necessary to write these magic words on every communication made in the course of the settlement process? And if so, does the failure to explicitly state them render them powerless?
|Consolidation of Arbitration Proceedings
By Timothy Froese and Sierra Bilyk
It is not uncommon for parties in long-term commercial relationships to become involved in multiple related arbitrations. If so, the parties may consolidate the arbitrations into a single proceeding for the sake of consistency and efficiency. But when is consolidation appropriate? And what happens if the parties do not agree? Depending on the governing legislation, the court may intervene. That was the issue in the Pricaspian case where the Alberta Court of Queen’s Bench held it had the jurisdiction to order consolidation under the Alberta International Commercial Arbitration Act, even over the objections of one of the parties.
|The Appeal of Arbitration
By William G. Horton, C.Arb, FCIArb
In an article in the last edition of Perspectives, Murray Smith suggested that arbitration is losing its appeal and that the only way to correct that is to provide greater recourse to the courts to correct “aberrant results”. However, the opposite can be said to be true.
Welcome to the sixteenth issue of the ADR Perspectives newsletter.
In this issue, our authors include arbitrators, arbitral counsel, and users of arbitration services from Vancouver and Toronto.
Rahat Godil and Max Shapiro tell us what we need to know about the new fast track arbitration process that the ICC is implementing to promote cost and time efficiencies in the resolution of international commercial disputes.
David E. Gruber and Nicholas M. Vaartnou provide their insights into the continuing development of the law arising from the Sattva decision, in particular, whether arbitral decisions about standard form contracts and “widely used” contracts are subject to review by the Courts on a reasonableness standard. William Hartnett, QC and Michael Schafler discuss the advantages and disadvantages of ad hoc arbitration versus institutional arbitration in Canada, including the availability of institutional arbitration services from the ADR Institute of Canada, Inc.
Murray Smith LLM, FCIArb, Chartered Arbitrator also provides a perspective on the Sattva decision, relaying his concerns about the effect of that decision and other decisions that have limited the right to appeal arbitral awards in Canada.
As always, we welcome articles with practical tips and advice for the ADR user community, especially in the field of mediation or in French.
|What You Need To Know About the ICC’s New Fast Track Arbitration Process
By Rahat Godil and Max Shapiro
The International Chamber of Commerce has streamlined its arbitration process to reduce the length and cost of arbitrations with new amendments to its Rules of Arbitration which came into force on March 1, 2017. Among the most notable changes is a new expedited procedure for resolving disputes in which the amount claimed is less than US$2-million, which the ICC is implementing in response to cost and efficiency concerns raised by businesses using institutional arbitration to resolve international commercial disputes. This article discusses the major benefits of and practical considerations relating to ICC’s new expedited procedure and how it compares to similar processes offered by other international arbitration institutions.
|Appellate Review of Arbitral Decisions involving Contractual Interpretation: The Exception for Standard Form Contracts,
By David E. Gruber and Nicholas M. Vaartnou
The Supreme Court of Canada recently held that issues of contractual interpretation were properly characterized as questions of mixed fact and law and that the standard of appellate review for arbitral decisions regarding such issues was reasonableness. The courts have subsequently established an exception to this standard for the interpretation of standard form contracts. This article will discuss this exception and its alleged expansion to “widely used” contracts to address when parties can rely on the deferential standard generally accorded to arbitral decisions.
|Ad Hoc v. Institutional Arbitration – Advantages and Disadvantages,
By William Hartnett, QC and Michael Schafler
The availability of institutional arbitration services from the ADR Institute of Canada (ADRIC) is a new development which provides parties with another option for their arbitration. Accordingly, the authors discuss the advantages and disadvantages of ad hoc arbitration and institutional arbitration in Canada.
|Is Arbitration Losing its Appeal?,
By Murray Smith, LLM, FCIArb, Chartered Arbitrator
In house counsel are increasingly concerned about the suitability of arbitration for the resolution of commercial disputes because of the danger of an aberrant result from which there may be no recourse. Arbitral institutions such as the British Columbia International Commercial Arbitration Centre and the International Centre for Dispute Resolution have attempted to respond to this concern.
Welcome to the fifteenth issue of the ADR Perspectives newsletter.
In this issue, you will hear from arbitrators, mediators, and arbitral counsel from Calgary and Ontario.
Tim Martin describes the recently-completed work of the Association of International Petroleum Negotiators in revising its Model Dispute Resolution Agreement and accompanying Guidance Notes, and the utility of this resource in drafting dispute clauses for multi-jurisdictional disputes.
Dr. Martha E. Simmons offers her advice on who should attend a mediation, and the preparation of an opening statement and a mediation plan.
Melanie L. Teetaert and Julie J.M. Taylor identify solutions for the important practical issues that can arise when dealing with the translation of foreign language for an arbitral process.
Heather L. Treacy QC suggests benefits from the early and effective use of experts in ADR processes.
Jeffrey D. Vallis QC, FCIArb and Laura Poppel provide their views on the manner in which the Supreme Court of Canada has recently applied its decision in the Sattva case and what that means in terms of the ability to appeal arbitral awards.
R.D. (Bob) Waldon, Q.Med advocates the view that the Canadian ADR community can and should do more in resolving conflicts with indigenous peoples.
We welcome you to submit articles with practical tips and advice for the ADR user community, especially on mediation or in French.
|A Leading International Dispute Resolution Template
By Tim Martin
There are recent revisions to a leading and widely recognized model international dispute resolution agreement along with its accompanying guidance notes. These revised materials, which have just been published, were updated to incorporate the best and latest provisions from the dispute resolution world. The template and guidance notes provide a useful tool in drafting dispute clauses and managing multi-jurisdictional disputes.
|Mediation Advocacy – Preparation is Key
By Dr. Martha E. Simmons
The following is an excerpt from the author’s recent book, Mediation: A Comprehensive Guide to Effective Client Advocacy (Toronto: Emond Publishing, 2017)
| Practical Considerations When Dealing With Translations in an Arbitration Process
By Melanie L. Teetaert and Julie J.M. Taylor
An arbitration involving a contract dispute can often come down to a few key words or terms in the contract. What if that contract is in another language and needs to be first translated into English? How do you make sure your case is not “lost in translation”? Translation can impact the interpretation of your contract. It can increase cost and impact arbitral timelines. The solutions to resolve these problems are not always obvious or easy. This article discusses some of the practical issues that counsel should consider when dealing with translation in an arbitration process.
|Effective Use of Experts in ADR
By Heather L. Treacy, QC
The engagement of an expert can be a vital step in assessing the issues, strengths and weaknesses of a case. The practice of litigation counsel is frequently to hold the evidence obtained from an expert close to their vest until late in the proceedings. This article examines whether there are ways to use experts early and more effectively to resolve those disputes that primarily turn upon expert evidence.
|The Post-Sattva Scope of Arbitration Appeals
By Jeffrey D. Vallis, QC, FCIArb et Laura Poppel
Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 (“Sattva”) is a landmark decision affecting arbitration practice in Canada in many ways. The decision is of particular importance because of its discussion of the right of a party to appeal an arbitral award when the underlying dispute arises out of an issue of contractual interpretation. Although appellate courts have restricted Sattva’s application in the context of appeals of trial courts’ decisions, the recent SCC decision in Urban Communications Inc. v. BCNET Networking Society, 2016 SCC 45 confirms that the principles of Sattva continue to govern the limited scope of appeal in arbitration.
|The ADR Community and Indigenous Relations “What are we doing?”
By R.D. (Bob) Waldon, Q.Med
At ADRIC2016, members came together to dialogue about one of Canada’s most important historical and contemporary issues that has been, and still is, very much informed by conflict; Canada’s relationship with Indigenous peoples. They shared their perspectives and ideas about the ADR community of practice’s role in this relationship and asked “What can we do? What should we do?” Their short answer was, “We should do more.” ADRIC2017 will be an important opportunity to continue this conversation and seek appropriate ways forward.
Welcome to the fourteenth issue of the ADR Perspectives newsletter, now beginning its fourth year of publication.
In this issue, you will hear from arbitrators, mediators, and arbitral counsel from across the country.
William G. Horton emphasizes the importance and benefits of direct negotiation to resolve disputes, and offers some practical tips to get the most out of it.
Harvey J. Kirsh outlines the potential for multiplicity of proceedings and inconsistent findings that can arise in construction disputes involving multiple related contracts and parties, as well as some potential solutions.
Pamela Large Moran comments on Canadian apology legislation, as well as the requirements and value of an effective apology in resolving disputes.
Darren J. Reed provides observations and advice about how to conduct a fast-tracked ad hoc construction arbitration without sacrificing fairness.
Mitchell Rose advocates for direct face-to-face discussion to break down barriers to resolution that can exist or escalate as a result of written communication.
Mary Jane Stitt identifies aspects of commercial insurance disputes that should be kept in mind in mediating those particular kinds of disputes.
In addition, Andrew Roman has stepped down from the Editorial Board, and we would like to express our appreciation for his contributions to the newsletter over the past couple of years.
Articles on mediation or in French would be most welcome.
|Mediation is not Enough
By William G. Horton
In this article the author discusses why mediation should not be the only strategy for settling business disputes and suggests a greater emphasis on direct negotiation and other options for in house counsel.
|Construction vs Design: Sorting out Claims Involving Multiple Parties and Contracts
By Harvey J. Kirsch
This article discusses the issues which arise in the context of a construction dispute when there are numerous related contracts and multiple parties, and when one of the contracts, to which the other parties may not be privy, calls for mandatory arbitration. The article describes the risk and reality of potentially inconsistent findings and conflicting results, in the midst of a multiplicity of proceedings.
|Apology Legislation and the Effective Use of Apology in Dispute Resolution and Reconciliation
By Pamela Large Moran
Within the last decade provincial and territorial policy makers have enacted “Apology Legislation” into their statutory regimes. Apology Legislation allows a party to facilitate an expression of remorse and regret, without the fear that this expression will be later used to their detriment in litigation. This article will speak to the history of apology legislation, the benefits of apologies in the mediation arena, and the necessary components of an effective apology.
| Fast-tracked ad hoc Construction Arbitration
By Darren J. Reed
In many ad hoc arbitration cases there is a desire on the part of at least one of the parties to try to “fast track” the proceedings. Successfully implementing that desire can prove to be elusive, unless there is an alignment among counsel, clients, and arbitrators alike to make the schedule paramount, without sacrificing fairness. Even where such an alignment exists, a carefully drafted arbitration schedule and procedure are important fail-safes
|The Secret to Settling Legal Disputes
By Mitchell Rose
”It is better to talk jaw to jaw than have a war” – Winston Churchill
|Mediation of Commercial Insurance Disputes
By Mary Jane Stitt
This article is based on the author’s experience as both a counsel and a mediator of complex commercial insurance disputes. It explores certain features of commercial insurance mediations that are idiosyncratic and different from other types of business disputes. It identifies issues to be resolved early in the mediation process and recommends practices and approaches that will enhance the likelihood of a successful mediation – diffusing claims handling complaints, thorough preparation and command of the material, dispelling negative perceptions based on stereotypes in insurance relationships, and the importance of principled, patient negotiation.
Welcome to the thirteenth issue of the ADR Perspectives newsletter.
In this issue, you will hear from arbitrators and arbitral counsel from western Canada.
The Honourable Clifton D. O’Brien QC provides his views on how to secure cost and time efficiencies through arbitration.
Gordon L. Tarnowsky QC and Rachel A. Howie suggest how to address the uncertainties in relation to security for costs in arbitrations.
Joe McArthur, FCIArb and Laura Cundari identify the principles and overriding considerations regarding the confidentiality of arbitral proceedings.
Michelle T. Maniago offers certain best practices for first procedural orders as a means of capitalizing on the benefits of arbitration.
Emily McCartney and Rebecca Silverberg raise an issue in relation to whether non-lawyers are able to represent corporations in arbitral proceedings.
In addition, there have been some changes on the Editorial Board. Ron Pizzo and Tim Brodie have stepped down, and their contributions to the newsletter have been valued and appreciated. Pamela Large Moran has joined the Editorial Board in place of Ron as the Co-Editor of the mediation stream, and the newsletter will benefit from her experience and contacts as a neutral and as counsel in the ADR field.
As well, David Tupper has joined the arbitral stream of the Editorial Board and is already making positive contributions.
Welcome aboard Pamela and David.
We look forward to receiving your feedback on the newsletter, as well as your submissions on topics of interest to the ADR community. Any articles in the mediation field or in French would be particularly welcome.
|Best Practices for First Procedural Orders
By Michelle T. Maniago
Arbitrations, properly designed and managed, can offer substantial time and cost efficiencies compared to traditional litigation. A comprehensive first procedural order made early in the proceeding, which sets the procedural expectations for the entire arbitration, is a key tool in realizing these efficiencies.
|Confidentiality in Arbitration
By Joe McArthur FCIArb et Laura Cundari
The expectation of a confidential dispute resolution process is often what draws parties to choose arbitration over litigation. However, sometimes that expectation may not be realized. The domestic courts of the United Kingdom, Australia and Canada have each taken different approaches in interpreting the scope of confidentiality attributed to arbitral proceedings. Despite these differences, courts have consistently ordered disclosure of documents created for arbitration where the interests of justice demand production.
|Corporate Self-Representation in Arbitrations
By Emily McCartney et Rebecca Silverberg
This article discusses a recent Alberta Court of Appeal decision prohibiting corporations from self-representing in court, and whether the decision impacts the ability of a corporate party to represent itself in arbitration proceedings.
|Securing the Advantages of Arbitration
By Hon. Clifton D. O’Brien, c.r.
The commencement of an arbitration through the appointment of a tribunal does not of itself ensure that the subsequent arbitral proceedings will be timely and cost efficient. It is necessary for the parties through their counsel, with the assistance of the tribunal, to quickly address the procedures to govern the proceedings and at the same time to set a timetable leading up to agreed hearing dates. Failure to address these matters at an early stage can result in a lengthy and inefficient mode of dispute resolution. This article suggests ways to ensure that the advantages of arbitration, in terms of time and costs, are achieved by the parties.
|Security for Costs in Arbitration: Part Two
By Gordon L. Tarnowsky, c.r. et Rachel A. Howie
This is the second part of a two-part article examining the rules and case law on security for costs in commercial arbitration in Canada. The following will review Canadian case law on security for costs in arbitration along with various leading institutional rules with respect to security for costs in international arbitration. Parties looking to have greater certainty that a tribunal has jurisdiction to direct security for costs may want to select a set of rules that expressly reference security for costs, or to specifically provide for this jurisdiction in their arbitration agreement.
Welcome to the twelfth issue of the ADR Perspectives newsletter.
This issue covers a broad spectrum of topics, including open mediations, top tips for drafting arbitration agreements, ADRIC’s arbitration administration service, security for costs in arbitrations (part one of a two part series – stay tuned for part two), and arbitration lessons to be learned from the ongoing “Deflategate” saga.
As always, in addition to reading the newsletter, please consider topics of interest to the ADR user community on which you might submit an article of up to 900 words.
We are especially interested to receive mediation articles and articles from Quebec or otherwise in French.
|Open Mediations? What Does Harvard Know Anyway?
By Douglas F. Best, LL.B.
Open Mediations – conducting mediations in one room, with no breakouts and no mediator meetings unless both sides are present. That is what the highly acclaimed Harvard Mediation course is teaching. Counterintuitive, maybe. Does the approach however have gravitas – indeed! All disputes involve people (whether for themselves or on behalf of the corporations they represent), therefore all disputes involve emotion. In open sessions, emotion based impediments get addressed (with effective mediator management) clearing the way for negotiations in respect of the real issues, which in turn increases the likelihood of resolution.
|Top Five Tips for Drafting Arbitration Agreements
By Mary E. Comeau, LL.B.
A badly drafted arbitration clause can cause confusion, delay and costly court applications. A well drafted one can avoid these issues and result in the process that you hoped to achieve by agreeing to arbitrate. This article discusses the top five areas where good drafting can be of most benefit and how to avoid common drafting missteps.
|Bargainer’s Remorse: Collective Bargaining Agreement Highlights Limited Ability to Appeal Arbitral Awards in Deflategate Appeal
By Norm Emblem, LL.B. et Barbara Capes, J.D.
A 2-1 majority of the United States Second Circuit Court of Appeals reinstated Tom Brady’s four-game “Deflategate” suspension on the grounds that courts owe substantial deference to arbitral awards issued pursuant to collective bargaining agreements. Such agreements are negotiated by the parties to reflect their priorities and expectations. Where the parties fail to limit an arbitrator’s authority or discretion through the collective bargaining process, the application of such broad powers is not in and of itself tantamount to unfairness or a lack of due process.
|High Marks for ADRIC’s Arbitration Administration Service
By Janet McKay
ADRIC’s Arbitration Administration service is popular with arbitrators, claimants, respondents and counsel. 100% of those surveyed about the service said that it provided good value and that they would recommend it to their colleagues and associates. They appreciate the friendly, professional service that gets the process started smoothly and keeps it moving along. ADRIC offers an efficient process for the selection of an arbitrator and also helps prevent unpleasant surprises and delays along the way. ADRIC’s service is especially relevant if relations between the parties have been strained, or if one or more parties is unrepresented.
|Security for Costs in Arbitration: Part One
By Gordon L. Tarnowsky, c.r. et Rachel A. Howie, LL.M.
The jurisdiction of an arbitral tribunal to award security for costs in either domestic or international arbitration can lack clarity depending on the specific arbitral agreement between the parties, the applicable rules, and the governing law. This article will examine, in two parts, the rules and case law on security for costs in commercial arbitration in Canada. This first part discusses some of the variation seen in institutional rules in Canada with respect to a tribunal’s jurisdiction to award security for costs
Welcome to the eleventh issue of the ADR Perspectives newsletter.
We are pleased to announce that Ludmila B. Herbst, Q.C. will be joining the Editorial Board. Ludmila is a partner at the B.C. firm Farris, Vaughan, Wills & Murphy LLP, where she practises in the areas of commercial and general litigation, regulatory law and commercial arbitration. She is the co-author of Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations, which has been cited by courts across Canada.
This issue includes submissions from arbitrators, arbitration counsel, and other ADR practitioners from Vancouver, Calgary, and Toronto and area.Colm Brannigan C. Med., C. Arb. underlines the quickly increasing prevalence and value of online dispute resolution, and the need for ODR to be embraced by those wanting to stay relevant in the ADR field.
Earl A. Cherniak, Q.C. comments on recent case law and offers valuable suggestions on the vexing question of the kinds of circumstances that arbitrators need to disclose in relation to their independence and impartiality to decide disputes.
Matthew Ghikas MCIArb, Q. Arb and Karen Wyke have teamed up to outline key issues to consider in negotiating and drafting arbitration clauses for international agreements.
David McCutcheon highlights the benefits of the new arbitration rules adopted by the ADR Institute of Canada, Inc., including the clarity and streamlined nature of those rules, designed to simplify, expedite, and decrease the cost of, the arbitration process.
Trish Morrison describes chess clock arbitrations, and shares her insights on the benefits and challenges of this approach to allocating arbitration hearing time among the parties.
In addition, please let us know if you have identified a topic of interest to the ADR user community on which you would like to submit an article of up to 900 words.
During the life of the newsletter to date, we have been fortunate to receive such insightful contributions from esteemed practitioners across the country, and we would like to continue that track record with your involvement.
|Online Dispute Resolution: The Tools of the Future for Mediators, Arbitrators and Lawyers are here today!
By Colm Brannigan, C.Med, C.Arb
Most dispute resolution practitioners see themselves as working face–to-face with their clients. This view has not changed in years, but it is in the process of being upended by online dispute resolution (ODR). ODR and technologies such as artificial intelligence are not sometime in the future. They exist now and we must learn to “race with the machine” if we are to be competitive in what will soon become an even more crowded marketplace.
By Earl A. Cherniak, QC
What an arbitrator should (one need not) disclose is one of the more difficult, but important questions that a prospective arbitrator must consider when offered a nomination, an obligation that continues throughout the appointment, if made. This article addresses some recent jurisprudence on the perils of non-disclosure, and offers some suggestions to arbitrators for their guidance.
|Negotiating Arbitration Clauses in International Agreements
By Matthew Ghikas, MCIArb, Q.Arb et Karen Wyke
Do you rely on “cookie-cutter” dispute provisions when drafting international commercial agreements? This article outlines important considerations in the negotiation of an arbitration provision in an international agreement.
|ADRIC’s New Arbitration Rules: How You Benefit
By David McCutcheon, LL.B., C.Arb
ADRIC’s new arbitration rules simplify the arbitration process, saving time and money. The rules themselves have been streamlined, making them clearer for everyone. Significant changes have been made to give the tribunal more control over document production, oral examinations and other procedural matters. There are also new rules for urgent interim relief. ADRIC’s standing committee on arbitration rules spent considerable time and effort to reach a consensus on rules that are flexible and consistent with provincial laws throughout Canada and are more consistent with international commercial arbitration rules.
|Chess Clock Arbitrations – Are the Constraints Worth It?
By Trish Morrison
Arbitration is perceived as being able to provide faster and cheaper dispute resolution, which is often not the case. One area where costs may be controlled is the hearing itself. The use of a chess clock for the arbitration is one method of controlling hearing costs, which involves agreeing in advance to the total amount of hearing time and the time to be allocated to each party. Practical considerations, benefits and challenges of this process are discussed.
This is the winter 2016 issue of ADR Perspectives.
This issue covers a broad range of very practical matters of importance to ADR practitioners.
For the arbitrators we have articles on: mandatory preliminary meetings; dealing with self-represented parties; bias; and tips for drafting arbitration clauses to avoid judicial proceedings about the arbitration process itself.
For the mediator, we have a thoughtful article on the thirteen steps to mediation success.
We hope you enjoy this issue of ADR Perspectives and remind you that we would be very pleased to receive any proposed articles you may wish to contribute for publication in the Perspectives Newsletter.
| The Risks and Benefits of Mandatory Preliminary Meetings Between Senior Representatives
By Mendy Chernos et Lyndsey Delamont
Commercial arbitration agreements may contain dispute resolution clauses that require senior representatives of the parties to meet for a designated period of time before further dispute resolution steps may be taken. This article examines the risks and benefits of such clauses as well as key factors that parties to such agreements should consider.
|Removal of an Arbitrator for Reasonable Apprehension of Bias
By V.A. (Bud) MacDonald, c.r., et Barb Cotton
In non-international arbitration across Canada, the test for removal of an arbitrator for reasonable apprehension of bias is clear and consistent as set by the Supreme Court of Canada in Szilard v. Szasz  S.C.R. 3,  1 D.L.R. 370. This article reviews several subsequent illustrative cases in which bias has and has not been found. The takeaway is that the actions of an arbitrator will have to be fairly egregious to justify removal for a reasonable apprehension of bias.
|Self-Represented Parties in Arbitrations: Practice Tips and Recent Case Law
By Daniel J. McDonald, c.r., FCIArb et Valerie E. Quintal
This article provides commentary on the duties and responsibilities of the arbitrator and the parties in arbitrations involving self-represented parties and practical advice on effective management of such arbitrations.
|When the Honeymoon is Over
By Andrew Roman, FCIArb
Someone brought to arbitration for breach of contract may try to defeat the arbitration by driving up costs and causing delay through court applications and appeals. These tactics can often be avoided through careful drafting of the arbitration clause in the contract.
|Thirteen Steps to Success at Mediation
By David P. Stark
13 Steps to Success at Mediation’ offers a number of practical pointers on how to get an agreement, once you are at mediation. Suggestions relating to process such as have food available, don’t respond in anger, collect yeses, and one off examples relating to things like late entrants to the mediation, and calling a friend will help the parties reach a settlement.
Welcome to the ninth issue of the ADR Perspectives newsletter.
After playing a key role as founding Co-Editor of the newsletter and leading the mediation stream for the first eight issues, Anne Grant has decided to pass the torch. On behalf of the entire Editorial Board and the ADR Institute of Canada, Inc., thank you, Anne, for your hard work and contribution to the newsletter.
Ron Pizzo has assumed the Co-Editor role for the mediation stream. Ron is a mediator, negotiator and litigator who hails from Halifax, and who is known for his ability to think creatively in resolving disputes. The Editorial Board welcomes Ron, and is looking forward to the addition of his background and experience.
This issue features articles from arbitrators, arbitral counsel, and an arbitral clause draftsperson, from Vancouver, Calgary, and Toronto.
Stephen Antle, C.Arb explains dispute prevention audits, when to use them, and how they can add value.
Norm Emblem and Barbara Capes provide a review of the NFL’s most recent scandal, to illustrate the balancing that courts should undertake between deference to arbitral decisions versus the need to ensure fairness and due process.
Mark Gerlitz, J.D., M.B.A. highlights from his experience how to address some of the key potential pitfalls in drafting arbitral clauses.
William G. Horton C.Arb, FCIArb suggests a number of innovative options to overcome the sometimes troublesome hurdle of appointing the arbitral tribunal.
As always, if you are interested in submitting an article of 500 to 900 words on an emerging or key topic of interest to the ADR user community, we look forward to receiving your submission.
In the meantime, happy reading.
|Dispute Prevention Audits
By Stephen Antle, C.Arb
The dispute prevention audit is a new, innovative and proactive risk management tool. It enables businesses in a wide variety of industries, with a wide variety of legal or operational problems, to identify systemic weak spots in their business processes and formulate solutions for them. The dispute prevention audit can save significant cost, time and aggravation, and preserve customer good will.
| When Pash Comes to Shove – Lessons from “Deflategate”
By Norm Emblem et Barbara Capes
Even if you are not a football fan, you should be paying attention to “Deflategate”. The NFL’s most recent scandal is more than just the saga of Tom Brady’s persecution by the NFL and its Commissioner, Roger Goodell. For the United States District Court for the Southern District of New York, “Deflategate” was an opportunity to explore the line between the established deference due to arbitral decisions by the courts on the one hand, and ensuring the application of fairness and due process in an arbitration on the other. The Court also examined the limits to an arbitrator’s discretion and the prejudice that can result when an arbitrator cherry-picks which ADR principles to apply. Following Judge Berman’s decision in “Deflategate”, Brady is free, but the ADR community is better off too.
|Building Better Arbitrations: Proactive Considerations to Achieve Business Objectives
By Mark Gerlitz, J.D., M.B.A.Arbitration can provide a better process than a traditional court process but it can equally be more frustrating, costly and unsatisfactory as a means of resolving disputes. To take advantage of the benefits an arbitration process offers, careful consideration should be given to the nature of the agreement and likely sources of disputes in order to tailor the arbitration process to the specific needs of the parties. This article will discuss just a few of the issues to consider when drafting the principal agreement, the arbitration agreement and the selection of panel members.
|Arbitration Appointments Made Easy
By William G. Horton C.Arb, FCIArb
There are many ways to overcome a sometimes troublesome hurdle to arbitration: the appointment of the tribunal itself. While having the whole arbitration run by an arbitral institution is one option, there are others that work very well in most situations. This article suggests a few.
Message from the Editors
Welcome to the eighth issue of the ADR Perspectives newsletter.
This issue covers a spectrum of ADR topics from practitioners across the country.
Michael Erdle offers practice tips arising out of a case study involving the rules for urgent interim measures contained in the ADR Institute of Canada, Inc.’s new Arbitration Rules.
Liz Foster points out the relationship impacts that generally result from a lengthy acrimonious dispute, and her article includes ideas for preventing those consequences.
Gavin Giles, Q.C. offers his perspective on the need to think carefully about what an arbitral clause should say, and provides suggestions about some of the topics to be addressed.
Phillip J. Scheibel underlines the importance of determining who will be the payer, as a precondition to a successful mediation.
Based on your recent experience or your experience over the years, do you have practical tips for an article to be published in either French or English, about mediation, arbitration, or other forms of ADR? If so, we look forward to your submission.
|Urgent Interim Measures
By Michael Erdle, C.Med, C.Arb
The new “Urgent Interim Measures” sections of the ADRIC Arbitration Rules provide a quick and effective way to obtain interim relief. This article looks at the new Rules and at some of the challenges for parties and arbitrators. It provides some practical tips for both applicants and respondents, to make the Rules work for them.
|Moving On After Acrimonious Disputes
By Liz Foster
Long, acrimonious disputes are a challenge and the road forward is not easy even after a conflict has been resolved. The obstacles facing both employers and unions following a labour dispute are examined in this article, with expertise from union leadership, dispute resolution practitioners and lawyers.
| ADR – One Size Does Not Fit All
By Gavin Giles, Q.C.
The insertion of a standard arbitration clause into any form of commercial agreement is very easy. It has thus become standard practice. So standard, in fact, that arbitration clauses are being inserted into commercial agreements without sufficient thought as to what they might mean in practical terms to the parties affected by them. This article explores the potential hurdles resulting from the careless use of arbitration clauses and offers some suggestions on how they can be better structured to ensure the most efficient dispute resolution process.
| Who Is The Payer?
By Phillip J. Scheibel, Rose LLPA variety of different factors are typically considered by a party in deciding whether to attend a voluntary mediation in an effort to resolve a dispute. One factor that arises only in some cases and therefore may be overlooked in the decision-making process and preparation for the mediation itself is which party will be the payer at the mediation. If there is uncertainty on this point at the start of the mediation, the outlook for a successful mediation is diminished. The issue instead needs to be considered at an earlier stage.
Welcome to the seventh issue of the ADR Perspectives newsletter.
In this issue, Stephen Antle offers practical advice on making commercial arbitration work by stepping around the pitfalls, Bill Horton provides insightful strategies for negotiating the resolution of disputes, Ghislaine Labelle advocates for the appointment of internal mediators to resolve workplace conflict, and Elton Simoes offers his perspective on the particular importance and benefits of ADR for intellectual property disputes.
As always, we invite your submissions on topics of interest to ADR users. We are particularly interested in receiving proposed articles in the mediation field.
|Commercial Arbitration – Making It Work
By Stephen Antle, LLB, C.Arb
Commercial arbitration can resolve disputes more quickly and with greater cost-efficiency, privacy and confidentiality than litigation, in addition to providing certainty of result, access to decision-makers with subject matter expertise and international enforceability. But it doesn’t always work out that way. Making commercial arbitration work requires using arbitration expertise, in drafting the arbitration agreement, serving as arbitration counsel and choosing the arbitrator.
|Negotiation: Strategy and Communication
By William G. Horton, C.Arb, FCIArb
Negotiation is a form of interaction that involves both strategy and communication. Negotiation without strategy may lead to capitulation. Without communication, negotiation often results in stalemate. Strategy requires parties to keep their ultimate goals secret whereas communication requires that parties understand each other. In this article the author offers a simple framework within which to address both goals.
|Comment intégrer la médiation collaborative dans votre entreprise ?
By Ghislaine Labelle, M.Ps., CRHA, CS
Comment intègre-t-on la « médiation collaborative » de manière plus globale au sein des entreprises? Le meilleur exemple qui me vient à l’esprit pour illustrer mon approche est ce qui est enseigné à vos enfants dans les écoles face à la résolution des conflits. Des élèves sont désignés pour agir comme médiateur auprès d’autres élèves qui vivent un conflit avant que soit impliqué un surveillant ou un autre membre du personnel. Pourquoi ne transposerions-nous pas ce concept dans nos entreprises afin de limiter les conflits, les plaintes en harcèlement psychologique et l’absentéisme au travail ?
|The Benefits of ADR in IP Disputes
By Elton Simoes, MDR, MBA, Q.Arb, Q.Med
If it is true that we live in an information society, it is also true that ideas are the lifeblood of contemporary existence. In this new world, IP is one of the most important assets. This article explores the reasons why ADR may be the best and most efficient way to address the majority of the IP related disputes.
Welcome to the first 2015 issue of the ADR Perspectives newsletter.
In this issue, we are pleased to offer a national set of perspectives, with articles from authors with offices in Vancouver, Calgary, Toronto, Ottawa, and Montreal.
You will find French and English articles, regarding arbitration, mediation, and ADR in general.
The topics include the use of apology legislation in ADR, whether parties always have the right to appoint an arbitrator, the use of mediation to solve workplace issues that might otherwise lead to disability claims, and the referral of questions of law to be decided by the court instead of the arbitral tribunal.
As always, we invite your submissions of articles on topics of interest to ADR users.
|Les liens entre l’environnement de travail et les réclamations d’invalidité de longue-durée
By Claude Freeman, LL.M. (PRD), C.Med, C.Arb
Plusieurs cas problèmes en milieu de travail sont mal gérés depuis le début. Des liens sont très souvent associés aux demandes de réclamations d’invalidité de longue-durée, surtout quand l’employeur n’offre pas de formation préventive, ou ne gère pas de façon rapide et déterminée, pour aller au fond des problèmes en milieu de travail. En faisant appel à des professionnels neutres pour prévenir et gérer des cas problèmes les employeurs et les conseillers juridiques en retireront des retombées positives.
|Who Appoints An Arbitrator?
By Ludmila B. Herbst
Arbitration is often marketed as offering participants their choice of decision-maker. Certainly parties’ opportunities to become involved in the selection process are generally greater than in court proceedings. However, clients should be mindful of limitations on their role even in the arbitration context. Though arising out of relatively unusual circumstances, the recent decision of the Alberta Court of Appeal in TransAlta Generation Partnership v Balancing Pool, 2014 ABCA 294 serves as a good reminder that the reality may fall short of arbitrating parties’ expectations.
| Courts and the Arbitral Process: Referrals of Questions of Law to the Court
By James H. Smellie
Commercial counterparties contemplating arbitration clauses as part of their contract want the terms of those provisions to meet all of the formal requirements, and accurately capture their intentions. Where they wish to include the ability to require the arbitral tribunal, at the request of one of them, to refer questions of law to the court, care must be taken to ensure their expectations are covered by such an agreement. Matters of contractual interpretation should not lightly be assumed to be questions of law subject to such a provision.
|Safe and Sorry: Apologies in Canada
By Bevin Cate Worton and Marina Pavlovic
Canadian apology laws preclude courts, tribunals, and arbitrators from finding that an apology is an admission of liability. However, there are limits to the protection that apology laws afford. Consider the limitations when advising your client whether or not to make an apology, as well as when and how any apology should be made.
Welcome to the fifth edition of ADR Perspectives, a publication of the ADR Institute of Canada.
This will be the last issue of this calendar year.
We appreciate all of the great submissions that we have received from authors across Canada, enabling us to achieve the ambitious goal that we set, to publish five issues in this first year of the newsletter.
In this issue, you will find articles from authors in Calgary, Montreal, Ottawa, and Toronto, about arbitral appeal rights, the enforcement of arbitral awards, confidentiality of the mediation process, and emergency arbitrators.
We would like to welcome Andrew Roman to our Editorial Board, and look forward to his input and guidance as the newsletter enters its second year.
Also, thank you to Tom Heintzman for his valuable contribution to the Editorial Board.
We wish Tom all the best in his busy mediation and arbitration practice, and in completing his construction law textbook.
We hope that he will find time to submit future articles to the newsletter.
We look forward to your continued feedback and article submissions (regarding arbitration, mediation, and other forms of ADR, and in both French and English).
|Urgent! Emergency Arbitrators Are Here (And Counsel Should Know About It)
By Anthony Daimsis
A trend finding its way into international arbitration rules is the Emergency Arbitrator procedure. Arbitration Rules like those of the International Chamber of Commerce have made this procedure a default. The status of measures that these Emergency Arbitrators issue and indeed the status of these arbitrators themselves are only beginning to be explored. Regardless of their status, since this procedure exists, it is important for counsel who practice in international arbitration to turn their minds to this emerging procedure.
|Votre clause de confidentialité en médiation est-elle étanche? (Is Your Mediation Confidentiality Clause Watertight?)
By Dimitri Maniatis et Pascal Archambault
Dans Union Carbide Canada inc. c. Bombardier inc., la Cour suprême du Canada a établi un équilibre subtil entre deux éléments clés du processus de médiation : le privilège relatif aux règlements à l’amiable et la confidentialité. La Cour a conclu que les parties à une médiation pouvaient écarter par contrat l’exception au privilège relatif aux règlements qui permettrait autrement la divulgation des communications qui ont mené à une entente de règlement dans la mesure nécessaire pour en prouver les modalités. L’exclusion contractuelle doit toutefois être clairement et expressément stipulée pour être exécutoire.
|When Do Foreign Arbitral Awards Become Ripe For Enforcement In Canada?
By Vasilis F.L. Pappas & William Wong
At the conclusion of an arbitration, it is not uncommon for successful parties to ask their counsel when proceedings can be commenced to enforce an award. Oftentimes, they are concerned that the losing parties might liquidate their assets or move them to a jurisdiction where enforcement is more difficult. However, there is some uncertainty, both internationally and in Canada, with respect to when arbitral awards become ripe for enforcement. This article examines that uncertainty, and suggests that arbitration practitioners should commence enforcement proceedings as soon as possible following the conclusion of an arbitration to avoid the foregoing risks.
|Abolish Appeals In Domestic Arbitration
By Joel Richler, B.C.L., LL.B, FCIArb
Appeals are not permitted in international arbitration, yet appeals are permitted in domestic arbitration. There are compelling reasons why such appeals should not be permitted.
Welcome to the fourth edition of ADR Perspectives, a publication of the ADR Institute of Canada.
In this issue you will find a range of articles for those using mediation and arbitration.
We would also like to take this opportunity to thank Bill Horton for his hard work on our Editorial board.
We wish Bill all the best in his busy mediation and arbitration practice and look forward to reading more of his submissions in the future!
Please continue to provide your feedback and please submit articles (both French and English) for future newsletters.
|A Journey Worth Taking
By Mireille Allain, C.Med
Mireille writes about one of her experiences co-facilitating a large group ADR process. It’s a journey that challenges both the perspectives of the client and the fortitude of the practitioner. While it may be a difficult journey, the outcomes can be extraordinary.
|Community Resilience & Healing in the Face of Violence
By Darlene Doiron
Darlene writes of the recent experience that has become known as the “Moncton Tragedy” where three RCMP offers were killed. She explains, from a mediator’s view, how that horrific incident became the catalyst for the expression of positive sentiment, healing and community love.
|Summary Judgment is the New Black: Why Arbitrators Can and Should Hear Motions for Summary Judgment
By Emily McCartney
Arbitrators can and should hear motions for summary judgment, particularly in light of the Supreme Court of Canada’s recent decision emphasizing the important role that summary judgment plays in ensuring timely, cost-effective access to justice. Parties involved in the drafting or negotiation of arbitration clauses or agreements should consider including a clause specifically granting the arbitrator of their dispute the power to determine the matter summarily when appropriate.
|Are Arbitrations Private and Confidential?
By Jim McCartney, LL. B., Arb. A.
Privacy and confidentiality in arbitration are sometimes the primary reason for choosing arbitration. However, they are distinct concepts. You can be pretty sure of getting privacy, but not necessarily confidentiality, with careful drafting.
|The Value of Transformational Coaching in Workplace Mediations
By Kevin McDonald
Kevin writes about the value of transformational process within an organizational setting. He posits that there is greater value in focussing on the learning that conflict offers than simply resolving the conflict in a collaborative way. By delving deeper into the personality of the players involved and their own core values we can introduce a capacity of resilience.
Welcome to our third issue of this ADR Institute of Canada, Inc. publication.
If you have enjoyed the newsletter so far, please pass it on to those who you believe may value it, so that they can subscribe before Canada’s anti-spam legislation takes effect on July 1, 2014.
In this issue, we have a mix of articles on mediation and arbitration, from authors in Toronto, Calgary, and Montreal, commenting on recent decisions and other developments, and offering sound suggestions.
We look forward to receiving proposed articles in both French and English, in all ADR fields.
|Whose Arbitration is it anyway? The Evolving Role of the Arbitrator in Determining Commercial Arbitration Procedure
By J. Brian Casey
Whose arbitration is it anyway? Reflections on the role of the arbitrator, counsel and the parties in expeditiously resolving disputes.
|Mediation: Snapshot of Current Options, Developments and Considerations
By Ivan Derer
It is opportune to revisit mediation options in Canada, private versus judicial, against the backdrop of the recently released Ontario Bar Association Task Force Report (“Report”) on JDR – A Different ‘Day in Court’ – The Role of the Judiciaryin Facilitating Settlements. The Report provides an informative overview of the state of JDRs from province to province and in the process casts fresh focus on the comparative strengths of private versus judicial mediations.
|Does An Informal Agreement To Mediate Stop The Limitation Period From Running?
By Thomas G. Heintzman
Users of mediation need to be aware that mediation has a trap: the limitation period. A party may enter into mediation and let the limitation period go by. This article provides commentary on three decisions which provide an essential legal framework for the impact of mediation on the limitation period as well as providing constructive advice on how to avoid this potential pitfall.
|Revisiting the Arbitration Agreement after a Dispute Arises – the Role of Arbitration Counsel
By Carsten Jensen
Arbitration counsel should meet with their counterparts early in a dispute, and ideally before the appointment of arbitrators, to consider whether the arbitration agreement is well suited to the actual dispute that has arisen between the parties. Early discussions between counsel, with a willingness to give and take, can often lead to a more appropriate and tailored arbitration process.
|Supreme Court of Canada renders key judgment on out-of-court mediation
By Martin F. Sheehan, Stéphanie Lavallée, Catherine Simonet
On 8 May 2014, the Supreme Court of Canada rendered a unanimous decision on the interaction between the common law privilege that protects discussions regulations and private contracts that provide for the confidentiality of mediation. The decision answers the question whether a mediation agreement stipulating the confidentiality of anything said or written during a mediation displaces the recognized exception to the privilege that allows the parties to prove the terms of a settlement agreement that has been concluded. It also stresses the importance of confidentiality in the mediation process while noting that it can be modulated and determined by the parties.
Welcome to the second issue of ADR Perspectives, a publication of the ADR Institute of Canada, Inc.
In this issue, you will find an article with suggestions on dispute resolution in the workplace, perspectives and tips from two different authors on what to consider when making the key decision on who to appoint as arbitrator, and an article regarding a recent decision by the Supreme Court of Canada on whether an arbitrator has the power to award compound interest under the British Columbia Commercial Arbitration Act.
At this early stage, we continue to welcome your feedback on this newsletter. And, if you have an idea for an article (whether in French or in English), please send it our way – see: ADR Perspectives Author Guidelines.
|Choosing An Arbitrator: Subject Matter Expertise vs. Risk of Bias
By Michael Erdle
Choosing a commercial arbitrator with special subject matter expertise requires extra care to avoid potential conflicts arising from existing professional relationships between the arbitrator and potential witnesses, according to an Ontario court which dismissed an arbitrator in a franchise dispute because he had once hired an expert for a similar case.
|Le fameux environnement de travail
By Claude Freeman
Get to the quick and simple issues of what happens when either rumored or alleged issues and problems in the workplace don’t get handled properly from the outset. This article discusses the risks associated with litigation, in cases where employers do not provide any preventive training for Civility in the Workplace, or do not act quickly and authoritatively to get to the bottom of the problem. More importantly, it sets out the benefits for employers and legal counsel alike in knowing when to call in neutral professionals for both preventive courses and in cases of reported incidents.
|Can An Arbitrator Award Compound Interest?
By Thomas G. Heintzman
In British Columbia v. Teal Cedar Products Ltd., the Supreme Court of Canada recently held that compound interest could not be awarded in an arbitration arising from a statutory compensation regime. The decision raises the issue of whether, in their arbitration agreement, the parties should specifically deal with pre-and postaward interest and state whether the arbitrator may award compound interest.
|Technical Versus Legal Arbitrators: Considerations, Advantages And Disadvantages
By David Tupper and Aaron Johnson
The selection of an arbitrator is a key step and often has a profound effect on the ultimate success of the arbitration. The authors provide some thoughts with respect to characteristics of good arbitrators, whether technical or legal.
We are pleased to introduce the inaugural edition of ADR Perspectives, a publication of the ADR Institute of Canada.
As the largest professional organization for ADR professionals across Canada, it was determined that a newsletter designed to assist users was timely.
In this opening issue you will find practical tips for those utilizing arbitration and mediation as well as general advice on how to prepare for ADR.
We look forward to your feedback, ideas, and proposed articles (both French and English) for future newsletters.
|So You Think Your Arbitration Agreement is Good Enough?
By Stephen Antle
Perhaps it takes a real life horror story to drive home the point that realizing the undoubted potential benefits of commercial arbitration requires using counsel with arbitration expertise to draft the arbitration agreement and conduct the resulting arbitration. Here is such a story – of how an unfortunately unremarkable arbitration agreement turned out to be horribly inappropriate when called into action.
|Preparing to Negotiate: Ten Tips for the Strategic Mediation Advocate
By Anne E. Grant
Successful advocates strategically assess and plan each negotiation and mediation. This includes understanding all relevant aspects of your case, setting goals and objectives as well as planning a strategy and backup plan to achieve those goals. This article provides a list of practical questions to be considered in preparing to participate effectively in direct negotiation or a mediated settlement discussion.
|Pre-Mediation Caucusing: A Useful Tool
By William G. Horton
A mediator who takes the time to have separate discussions with each of the parties in advance can avoid some common problems which arise at the mediation session which all parties attend and can give all participants valuable tools to improve the chances of achieving a successful resolution.
|Time is Money
By Jack Marshall
The cost of litigation has increased dramatically due to vastly expanded discovery and an enormous increase in the number of motions, with the result that it is often years before a case reaches trial. Cost has put litigation out of reach of many. With counsel experienced in arbitration and a tribunal to actively shepherd the process, a procedure can be custom designed to shorten the time required to resolve the dispute. The time savings translate into dollars saved.
|Dispute Management Systems – How They Can Add Value
By Christa Nicholson
This article discusses the cost-savings and other benefits that may be achieved by organizations through the implementation of a dispute management system comprised primarily of the systematic application of ADR practices and tools.
|Evidentiary Privilege in International Arbitration
By Vasilis F.L. Pappas
The issue of privilege in international arbitration raises two important questions. First, do international arbitral tribunals have the authority to order that evidence is inadmissible on the ground of privilege? Second, what jurisdiction’s rules of privilege should apply when the parties to a dispute hail from different jurisdictions? This article addresses the emerging consensus that has developed in recent years to resolve these issues.
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- Arbitration: Bryan C. Duguid Q.C., FCIArb – (403) 571-0746 or email@example.com
- Mediation: Pamela Large Moran, BA, LL.M, C.Med – (902) 892-7867 or firstname.lastname@example.org
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