Peter Chauvin and Doug Melville

We are most pleased to present you with the second edition of our ADR newsletter for the 2009/2010 year.

Jesse T. Glass Q.C.

In his article Jesse Glass examines the ethical dilemmas that arise when the mediator has had a past relationship with one of the parties or one of the counsel. Mr. Glass also considers what a mediator should do when one of the parties overlooks an issue, commits an error or makes a disclosure against their interest.

P. David McCutcheon and Marina Sampson

McCutcheon and Sampson consider the impact of a recent Alberta Court of Appeal case on the stay provision of Alberta’s Arbitration Act, which shares almost identical wording with the Ontario Act.

Hilary Linton

Hilary Linton addresses the complex decision clients face in choosing amongst the various dispute resolution options and invites readers to contribute to the discussion.

Randy A. Pepper

Randy Pepper notes recent court decisions in consumer class actions overriding arbitration clauses and muses whether consumer protection legislation needs to change to re-establish the ability to use arbitration as an efficient means of resolving consumer disputes involving similar facts.

Iris L. Pichini

The second installment of a three-part, academically-oriented look at the interplay between gender, language, power and their impact upon the mediation process.
 

Arthur Fish

Although this book is not aimed at mediators, the straightforward techniques described by psychiatrist Dr. Mark Goulston are directly applicable in mediation.

Kathleen Kelly and Sonu Dhanju

Kathleen Kelly and Sonu Dhanju report on the recent joint program of the Civil Litigation and ADR sections of the OBA that examined the effect that the changes to the Rules of Civil Procedure will have upon mediation and questioned whether ADR should stand for "Appropriate Dispute Resolution".

Ruben Benmergui

Ruben Benmergui examines the innovative and controversial Framework of Fairness Agreement that was entered into by the CAW and Magna and considers the issues of whether the Agreement is a breakthrough in ADR and labour relations or a sell-out of fundamental union principles.

Barbara (Franklin) Martyn

Editors:
Peter Chauvin
Doug Melville

Peter Chauvin and Doug Melville

We are most pleased to present you with the second edition of our ADR newsletter for the 2009/2010 year. This edition has a wide variety of articles that range from updating you on the changes to the Rules of Civil Procedure to challenging you to consider what you should do when confronted by ethical dilemmas when conducting a mediation. We hope that you will find all of the articles to be informative and stimulating.

Personally, we think that with the recent arrival of the beautiful spring weather, you should read the articles on your deck or in your backyard, with a beverage of your choice. Read responsibly!

Jesse T. Glass Q.C.*

In this article I will discuss a number of ethical issues which sometimes face mediators. There are often no easy answers to some of them but one may be able to extract an over-arching principle to assist.

My own experience is largely, although by no means exclusively, in regard to disputes involving insurers, both as named parties and as the indemnifier of parties. Nevertheless, ethical issues and considerations cross all lines of disputes.

In our jurisdiction, unlike the state-appointed mediators in some of the U.S. states, mediators generally remain above the fray in terms of suggesting the final positions of one or other of the parties. A mediator fills the role of a facilitator but not a decision maker. In essence, mediators should be, and be seen as, neutral to each party.

Consider the following situations. In each, as a matter of simplicity, I will refer to the mediator as “he” or “him “. It should be understood that my comments apply equally to mediators of both genders.

1. The insurer of one of the defendants was a long time client of the mediator providing a large annual volume of work to the mediator before the latter left the practice of law to be a full-time mediator. The insurer continues to send work to the mediator’s old firm although the mediator has no financial interest in the firm. At the time of his prospective retention by the parties, the mediator declares to them his history with the insurer. Need he go further if all parties agree to use his services? Is there any realistic perception of bias? Should the mediator refuse any matters involving any of his previous insurance clients for a period of X months or years after leaving law practice?
    
2. One of the personal litigants is a former regular client of the mediator. Should this be disclosed up front? Should the mediator agree to take the matter on at all?
    
3. The mediator’s approach to statements made during a private caucus, clearly stated to all parties, is anything said during caucus sessions may, at the discretion of the mediator, be disclosed to the other parties by the mediator unless he was told at the time of the statement that it was confidential and should not be reported. During the course of discussion in a caucus session counsel revealed his “last number” though the negotiations had not yet reached that figure. The revelation seemed to the mediator to be inadvertent. It was not expressed to be confidential. What should the mediator do with the information? What, if anything, should he say or not say to the counsel?
    
4. During the course of the mediation it becomes clear to the mediator that one of the counsel has overlooked a matter of law which, had he been knowledgeable of it, would have enhanced his client’s position. What, if anything, should the mediator do?
    
5. Counsel, during his opening and/or later during a caucus session, asserts a legal issue. The mediator knows that the counsel was in error. The assertion is not challenged by the opponent. What, if anything, should the mediator say or do?
    
6. One of the counsel is an old, close friend of the mediator. They socialize regularly. Should the mediator provide his services in such circumstances?
    
7. During the course of a private caucus with the plaintiff, and while his counsel is briefly out of the room, the plaintiff blurts out that above all else he wants closure and strongly wants to settle the case. Is this something which can or should be disclosed to the defence, even though the rule of thumb is that anything said in caucus is not confidential unless requested to be so?

No doubt other examples and situations will occur to the reader.

What over-riding concept should be in the forefront of the mediator’s mind? In the view of this writer, it is that the independence and neutrality of the mediator must not only be a fact but must be seen as such. Does this mean that he cannot mediate a case in which one of the counsel is a close friend? Not necessarily, provided that disclosure is made at the stage when counsel are still contemplating the selection of the mediator. It is essential that all parties believe in the integrity of the mediator. However, even this may not satisfy counsel who, it should be remembered, needs the approval of the client as to the choice of the mediator. The mediator may have a long history, while he or she was at the bar, of representing plaintiffs in personal injury matters or may have a long history of having represented insurance companies. The issue for counsel and the client is whether the personal integrity, experience and perceived fairness of the mediator outweigh any concern of even an unconscious bias arising from his or her history while practising law. Many counsel believe that the skill and the experience of the mediator are the essential qualities to be considered, particularly if the mediator is one who is known to stay out of the fray. Thus, it is not uncommon that some mediators who were members of the so-called plaintiffs’ bar are preferred by insurers, because of the mediator’s particular skills and techniques during mediations. Similarly, it is common for some counsel representing plaintiffs to favour mediators who, in their previous life, were long-time members of the defence bar, on the grounds that they not only understand the plaintiffs’ cases but also understand how insurers function, what influences them and how claims managers’ minds work.

With all of the foregoing in mind, my views with respect to the various issues numbered above are as follows:

1. In this example, the insurer of one of the defendants was a former client of the mediator. There is no obvious necessity for a mediator to refuse a case involving one of his former insurance clients, even if he has a personal relationship based on past business or on friendship or both with the claims person. If the mediator has a deserved reputation for honesty and integrity, counsel for the parties should have no fear of any unspoken bias. However, the plaintiff personally may have a different reaction, despite the advice of his counsel. The final decision as to the choice of the mediator must be that of the client, based on appropriate information. Needless to say, if the mediator feels uncomfortable with the circumstances, he should not serve.
    
2. Here the personal litigant was a former client of the mediator. Again, there is no ethical reason why a mediator cannot mediate a dispute which involves an old personal client, providing he feels comfortable within himself in maintaining an unbiased and neutral role.
    
3. Where a counsel discusses or blurts out his “last number” in terms of what he or his client will accept, the mediator should exercise his judgment as to whether the comment was deliberate or inadvertent. If in doubt he should repeat the statement aloud to the speaker and should verify that he is at liberty to use it in a manner best calculated to achieve a settlement. Even if told to keep the figure confidential, he need not disabuse his mind of the information for the purpose of enhancing the negotiations and moving towards a resolution.
    
4. Counsel has forgotten or overlooked a matter of law which, had it been known to him, would have materially enhanced his client’s case. It is not the role of a mediator to correct a legal error made by counsel. If the opposing counsel comments on the issue, it would be open to the mediator to relay the comment to the first counsel but if there is no reaction to the apparent error the mediator should ignore what he may well know is an error and move on.
    
5. Counsel erroneously asserts a legal principle. The mediator is not or should not be seen as a law professor and thus should not correct the error. To do otherwise could be interpreted as favouring one side over the other. He must restrain himself and be only a facilitator.
    
6. One of the counsel is a close personal friend of the mediator. The mediator who is truly independent and honest should be capable of exercising his skills for any person, friend or not, providing he is comfortable in doing so. To be on the safe side in terms of perceptions, the other parties should be informed in advance of the social/friend relationship between the mediator and the counsel. Any reluctance on the part of any party will likely result in the decision by the party to look elsewhere.
    
7. The plaintiff admits to being very anxious to settle the case, the admission made in caucus while his counsel is temporarily out of the room. This example presents on its face a difficult ethical issue as it clearly indicates his state of mind in terms of a need or desire to settle his case. My own view is that when his counsel returns to the room he should be told of the statement made by his client in his absence and asked whether it is requested that the comment be considered as private. It is probable that the response will be in the affirmative. The mediator cannot wipe from his mind his knowledge of the plaintiff’s wish. Indeed, he may assume that both sides are desirous of resolution, else why are they there? An experienced mediator can use all of the information available to him to creatively encourage both sides to move their offers into more reasonable terms, knowing that both parties have an impetus to reach a final resolution.

There may be many other situations which arise before and during a mediation which present an ethical dilemma. The simple answer is that a consistent approach which is honest, honourable and which is seen to be above the fray will inevitably lead to the correct position.

* Jesse T. Glass Q.C., mediator and arbitrator, was formerly a partner in the law firm Laxton Glass LLP and is currently the principal of Glass Dispute Resolution. He is also a part time instructor in civil litigation at the School of Continuing Studies of the University of Toronto. He can be reached through www.glassdisputeresolution.com or at jessegdr@gmail.com.
 

P. David McCutcheon* and Marina Sampson**

Introduction

Harlan F. Stone, the former Chief Justice of the United States Supreme Court, famously stated, “the law itself is on trial quite as much as the cause which is to be decided.” 

In a recent Alberta Court of Appeal decision, it can equally be said that the Alberta Arbitration Act¹ itself was on trial along with questions surrounding whether to stay legal proceedings in the face of an arbitration agreement. Given the common genesis and language of both the Alberta and Ontario Arbitration Acts, the decision may have implications that extend beyond Alberta.

Lamb v. AlanRidge Homes Ltd.

The Alberta Court of Appeal case, Lamb v. AlanRidge Homes Ltd.,² more particularly involved section 7 of the Alberta Arbitration Act (the “Alberta Act”). At the outset, it bears noting that section 7 of the Alberta Act is virtually identical to section 7 of the Ontario Arbitration Act (the “Ontario Act”).³ Section 7 of the Alberta Act states as follows:

7(1) If a party to an arbitration agreement commences a proceeding in a court in respect of a matter in dispute to be submitted to arbitration under the agreement, the court shall, on the motion of another party to the arbitration agreement, stay the proceeding.

(2) The court may refuse to stay the proceeding in only the following cases:

(a) a party entered into the arbitration agreement while under a legal incapacity;

(b) the arbitration agreement is invalid;

(c) the subject matter of the dispute is not capable of being the subject of arbitration under Alberta law;

(d) the motion to stay the proceeding was brought with undue delay;

(e) the matter in dispute is a proper one for default or summary judgment.

(3) An arbitration of the matter in dispute may be commenced or continued while the motion is before the court.

(4) If the court refuses to stay the proceeding,

(a) no arbitration of the matter in dispute shall be commenced, and

(b) an arbitration that has been commenced shall not be continued, and anything done in connection with the arbitration before the court’s refusal is without effect.

(5) The court may stay the proceeding with respect to the matters in dispute dealt with in the arbitration agreement and allow the proceeding to continue with respect to other matters if it finds that

(a) the agreement deals with only some of the matters in dispute in respect of which the proceeding was commenced, and

(b) it is reasonable to separate the matters in dispute dealt with in the agreement from the other matters.

(6) There is no appeal from the court’s decision under this section.

The Appellant, AlanRidge Homes Ltd. (“AlanRidge”) appealed a decision of a chambers judge, the Honourable Mr. Justice A.D. Macleod, dismissing AlanRidge’s application to stay legal proceedings brought by the Respondents, the Lambs.⁴ 

The Facts

The Lambs and AlanRidge entered into a construction agreement wherein AlanRidge was to build a house (the “Construction Agreement”). The Construction Agreement contained a mandatory binding arbitration agreement (the “Arbitration Agreement”).

As a result of alleged defects in the house, the Lambs commenced an arbitration pursuant to the Arbitration Agreement. The Lambs did not progress the arbitration. Approximately 18 months after they commenced the arbitration, the Lambs issued a Statement of Claim, commencing an Alberta court action against AlanRidge and certain subcontractors. AlanRidge brought an application to stay the action under section 7 of the Alberta Act, as reproduced above.

The Alberta Court of Queen’s Bench Decision

Justice Macleod concluded that while all of the claims made against AlanRidge in the Lambs’ action fell under the Arbitration Agreement, the action nonetheless included non-arbitrable claims against third party subcontractors and other defendants. The Arbitration Agreement did not therefore encompass all of the claims in the court action.

Justice Macleod declined to grant a partial stay under section 7(5) of the Alberta Act, finding that the arbitrable and non arbitrable claims were “inextricably linked to one another” and could not be separated. Justice MacLeod relied on the Alberta Court of Appeal’s decision in New Era Nutrition Inc. v. Balance Bar Co.,⁵ concluding that the application should be dismissed and that the arbitration, as opposed to the court action, should be stayed to avoid a multiplicity of proceedings.⁶ 

The Outcome at the Court of Appeal

Very briefly, the appeal failed because pursuant to the Alberta Act (section 7(6) as set out above) Justice Macleod’s decision was unappealable.

Once the Court determined, contrary to the submissions of the Appellant, that Justice Macleod’s decision was made under section 7 of the Alberta Act, its decision that an appeal was precluded was swift and unequivocal. The Appellant had implored the Court to construe section 7(6) narrowly, to avoid insulating a decision made under what it argued was an erroneous interpretation of section 7. The Court instead interpreted section 7(6) based on its plain meaning, referring in its decision to the Ontario Court of Appeal case of Radewych v. Brookfield Homes (Ontario) Ltd.⁷ 

The Court, however, did not stop there. The Appellant had argued that the presence of additional parties (non parties to the Arbitration Agreement) in the legal action was not captured by section 7(5). By implication, the Court seemed to agree. The Court proceeded to examine section 7 of the Alberta Act, highlighting what it referred to as, “a lack of clarity in the existing Alberta legislation.” The Court stated that section 7 and in particular the intended scope of section 7(5) was far from clear.

While on the one hand the Court indicated that it would not make a determination on the lower court decision’s correctness, it nevertheless pointed out that in giving priority to litigation in order to avoid a multiplicity of proceedings, the decision went against the Alberta Court of Appeal’s reasoning in Kaverit Steel and Crane Ltd. v. Kone Corp.⁸ Kaverit Steel gave primacy to arbitration, but was decided under the International Arbitration Act⁹ and not the Alberta Act.¹⁰ The Court further recognized that two recent decisions of the British Columbia Court of Appeal,¹¹ (one of which, Seidel v. Telus, was granted leave to appeal to the Supreme Court of Canada), were seemingly at odds with the lower court’s decision insofar as it failed to stay court proceedings in the face of an arbitration agreement.

The Court concluded that the appeal demonstrated a lack of clarity in the Alberta Act; more particularly, given the inability to appeal decisions under section 7, the Court found that legislative review and amendment may be appropriate.

Comment

The complicated interplay between holding parties to their arbitration agreement and avoiding multiple proceedings is not a new dilemma. The dilemma is made thornier still where the decision is exempt from appellate review and the statute is vague. The policy behind section 7(6) (no appeal) is sound. If parties are mired in appeals, expedience and efficiency, arguably the hallmarks of arbitration, will surely be lost. Still, a sound policy does not make living with an incorrect decision, perceived or otherwise, any easier. 

Consider the possible effects of the chambers judge’s decision under section 7(5) of the Alberta Act: parties who are able to undermine their agreement to arbitrate simply by including additional parties (non parties to the arbitration agreement) and heading off to court instead. But this is not the end of the road for this case and others like it. An application for leave to appeal to the Supreme Court of Canada in the instant case is pending and the British Columbia Court of Appeal case cited by the Alberta Court of Appeal, Seidel v. Telus, is pending before the Supreme Court of Canada. Perhaps provincial legislatures will take some direction from decisions of the Supreme Court of Canada. 

In the meantime, what about Ontario? Ontario courts have previously interpreted section 7(5) of the Ontario Act in similar circumstances. Radewych v. Brookfield Homes (Ontario) Ltd., a decision of the Ontario Court of Appeal, cited with approval by the Alberta Court of Appeal in support of its interpretation of section 7(6), is an example. In Radewych, the Ontario Court of Appeal did not call for amendment to an unclear statute, but cited the lower court’s decision supportively:

That subsection (section 7(5)) reposes a discretion in the court to stay a proceeding with respect to matters dealt with in an arbitration agreement where some matters arise under the agreement and some do not.

 . . .

It is preferable, in my view, that all of the various claims, against all of the defendants, be determined in one proceeding.

Where the Alberta Court of Appeal saw a lack of clarity in the statute, the Ontario Court of Appeal saw a judge’s ability to exercise discretion. It should be noted that the two decisions are consistent in their result; however, the direction from the Alberta Court of Appeal is that clearer rules should exist for the exercise of a judge’s discretion. 

The decisions demonstrate somewhat divergent approaches to the same problem; perhaps neither is wrong, but only time, and further appeals, will tell. In the meantime, under the Ontario and Alberta Acts, drawing the line on a stay of court proceedings in favour of domestic arbitration agreements where there are additional parties remains uncertain and unpredictable. 

*David McCutcheon is a partner at Fraser Milner Casgrain LLP. He is past president of the ADR Institute of Canada and the ADR Institute of Ontario and a founding member of the Toronto Arbitration Roundtable.

**Marina Sampson is an associate at Fraser Milner Casgrain LLP in the Litigation and Alternative Dispute Resolution Practice Group and the Renewable Energy Group.

_________________

¹ Alberta Arbitration Act, R.S.A. 2000, c. A-43.
² Lamb v. AlanRidge Homes Ltd. (2009) ABCA 343; application for leave to appeal to the Supreme Court of Canada, pending.
³ Arbitration Act, 1991, S.O. 1991 C. 17.
⁴ Justice MacLeod’s decision affirmed a master’s decision.
⁵ New Era Nutrition Inc. v. Balance Bar Co., 2004 ABCA 280, 357 A.R. 184. It should be noted that in the proceeding AlanRidge also made application for leave to reconsider the Court of Appeal’s decision in New Era Nutrition Inc. v. Balance Bar Co. This incidental application also failed.
⁶ It should be noted that at a hearing before entry of the formal order, the chambers judge did vary his decision, orally, staying the arbitration only in part and allowing the arbitration to proceed with respect to certain issues outside the scope of the legal action.
⁷ Radewych v. Brookfield Homes (Ontario) Ltd. (2007) ONCA 721, [2007] O.J. No. 4012 at paras. 3-4.
⁸ Kaverit Steel and Crane Ltd. v. Kone Corp 87 D.L.R. (4th) 129.
⁹ International Commercial Arbitration Act, S.A. 1986, c.I-6.6 (now R.S.A. 2000, c. I-5.
¹⁰ With respect to Kaverit Steel, it is worth noting that the language of the relevant section of the International Arbitration Act considered (The Convention, Article II, section 3) is arguably more mandatory and more limited in scope when compared to section 7 of the Alberta Act and states as follows: “The Court of a Contracting State (in this case, Alberta) shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.” Further, in its decision in Kaverit Steel, the Court recognized that, “It is common ground that the evident purpose of Alberta’s acceptance of the Convention is to promote international trade and commerce by the certainty that comes from a scheme of international arbitration.” All this to say that both the language and objects of the international arbitration scheme, as compared to the domestic scheme, may be distinguished.
¹¹ Seidel v. Telus Communications Inc., 2009 BCCA 104, (2009) 304 DLR (4th) 564 and MacKinnon v. Money Mart, 2009 BCCA 103, (2009) 304 DLR (4th) 331.

Hilary Linton*

Clients are more sophisticated than when I started practising law. They know about mediation, collaborative law and traditional negotiation. They want the best process and the best outcome.

Most of them, however, may not really understand the differences among the process options and how these differences could affect them. The costs of using the wrong process can be substantial; and yet there is little available to help clients evaluate the options and choose the best one for them.

Even many lawyers do not understand the key differences among these conflict resolution methods. For example, the American Bar Association recently considered the first draft of a Uniform Collaborative Law Act at its mid-term meeting. It soon became clear that many lawyers did not understand the process well enough to knowledgeably discuss it. As a result, the Uniform Law Commission withdrew the Act for later consideration.

To make it more complicated, negotiation processes are not static; each approach is morphing with time and experience and borrowing from others.

The success of mediation has led to the growth of collaborative practice. Mediators, in turn, are increasingly utilizing the team approach developed so well by collaborative lawyers. Most family lawyers have taken mediation, collaborative law or negotiation training. This is changing the way even the most “adversarial” family lawyers approach negotiation. Collaborative lawyers are experimenting with the use of traditionally adversarial mechanisms, such as arbitration, to address the difficulty of resolving impasse when defaulting to the rights-based process of litigation is not an option. Other negotiation processes, such as “cooperative law”, are just beginning to evolve.

How should lawyers then advise their clients on the best negotiation process for them? The purpose of this article is to briefly discuss the three main negotiation processes and invite your suggestions as to how we can help clients make informed choices.

Each process has its own trade-off of risks and benefits.

Many think mediation is an obvious first choice. It is focused and inexpensive and the parties can utilize all other options, including litigation, with the same lawyers if that is what they need to obtain optimal results. It is totally client-driven. It can be very directive or very transformative, or both; the clients choose their mediator and determine how they will use the process. Most mediators are well trained, accredited and/or very experienced and the process achieves high rates of settlement. The success of mediation, however, is often determined by the skills and experience of one single mediator. Further, not all clients function well within the informal mediation environment. Mediated agreements can be difficult for counsel to formalize, particularly where counsel did not attend the mediation, meaning that the anticipated cost savings are not always realized.

In collaborative practice, more professionals are piloting the negotiation, including mental health and financial experts, as well as lawyers. With the support of this team, clients can reach well-considered and workable outcomes in complicated cases. The absence of the “litigation threat” can empower parties to negotiate from a place of trust that is much harder to achieve in an adversarial environment. Like mediation, the process often fosters improved relationships. Because both counsel are present throughout, clients have strong legal support, and agreements reached during the negotiation are likely to be finalized. It is almost always (considerably) more expensive than mediation, however, particularly if it fails and the parties have to find new lawyers. Clients cannot use the threat of litigation as a “reality check” or to compel reasonable behaviour; nor can they abuse it for strategic gain. And the process, though realizing real success in many jurisdictions, remains new, with some unresolved questions about the legal ramifications of the four-way agreement, for instance.

Traditional, adversarial lawyer-to-lawyer negotiation provides more formality and the more structured approach of a rights-based negotiation. Many clients need the power that such a negotiation, conducted on their behalf by a trained professional, can give them. There are many personalities and situations that are best suited to a more competitive kind of negotiation. But adversarial bargaining is known to be very expensive and time consuming, to harm relationships and to miss opportunities for more creative agreements. Further, given the costs to be paid and hurdles to be cleared before one can actually appear before a judge, the “threat of litigation” is often somewhat hollow. As lawyers frequently do not meet the other’s clients, they may find it easy to demonize that client—perhaps the most destructive aspect of the adversarial negotiation process.

So how should we screen our clients to recommend a process, and what do clients need to know in order to make an informed choice?

For mediators, this is a relatively easy task. We have the luxury of being able to meet with each party separately before taking on a case. By meeting with each of them in advance, we can assess whether mediation is the right process for the clients and, if so, how to best structure the process to meet their needs. We can answer each client’s questions about the process and apply what we have learned and intuited from each in deciding whether to mediate or refer the clients to another negotiation process.

The task is harder for family lawyers, who only meet with their own clients before advising them on the optimal process choice. Even so, most family lawyers are skilled at interviewing their clients for indications of a personality disorder; other forms of mental illness or learning disability; power imbalances that flow from histories of abuse or violence; drug or alcohol addiction; emotional readiness to negotiate; or a significant lack of communication or processing ability.

What factors are important to you when it comes to advising clients on their negotiation process options? Is it enough if the client comes to you and says “this is what I want”? What kinds of information do you think you need before you can recommend a process? In your experience, what kinds of people or cases work well in each negotiation process?

Please send your thoughts and experiences to hilary@riverdalemediation.com. Or you can visit blog.riverdalemediation.com and post a comment there, in a series that will feature well-known guest writers. If you want to write a guest post on the topic please do so.

The end result I hope will be a questionnaire that clients could complete to help them, with the guidance of counsel, better appreciate the difference that one process choice over another might make for them.

*Hilary Linton, Riverdale Mediation, is a Toronto lawyer, mediator, arbitrator and ADR teacher. She trains family law professionals in negotiation theory and skills, and screening for power imbalances in negotiation.

Randy A. Pepper*

In its recent decision in Griffin v. Dell Canada Inc., 2010 ONCA 29 (CanLII), the Ontario Court of Appeal has again added its voice to the judicial debate in Canada on whether a dispute should be heard by an arbitrator when a plaintiff or its counsel would prefer to have the matter heard as a class proceeding. The debate has made its way to several appellate courts across the country including the Supreme Court of Canada in Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 (CanLII) and Rogers Wireless Inc. v. Muroff, 2007 SCC 35 (CanLII). 

In Griffin, the first representative plaintiff leased a Dell Inspiron notebook, primarily for business purposes, through his business, Griffin Leasing, from a leasing company. Before leasing the computer, Griffin looked at various Dell products on Dell’s website and agreed to be bound by Dell’s terms and conditions of sale which included an arbitration clause requiring that all disputes be submitted to arbitration. The statement of claim, issued in January 2007, alleged that in 2006 Griffin’s computer began to experience overheating problems and eventually failed. The statement of claim also alleged that five models of Dell notebook computers sold in Canada were defective and asked for certification of the claim as a class proceeding. Claims were asserted in negligence, breach of contract, unjust enrichment, waiver of tort and breach of the Competition Act, R.S.C. 1985, c. C-34, s.52. 

Dell sold 118,629 of the Inspiron notebook computers at a price of approximately $2,000 each. The plaintiff sought to certify a national class of purchasers who bought Dell notebook computers between March 2003 and May 2005. In response, Dell sought an order staying the action pursuant to the arbitration clause and the Arbitration Act, 1991,S.O. 1991, c. 17, s. 7.

On the certification motion, Madam Justice Lax found that it was “fanciful to think that any claimant could pursue an individual claim in a complex products liability case” and that enforcing Dell’s arbitration clause would have the effect of immunizing Dell “from accounting to class members for any wrong it may have caused”. She refused Dell’s request to stay the class action in favour of arbitration, granted a certification order conditional on the plaintiff filing an improved litigation plan, and also gave the plaintiff leave to amend to add a second representative plaintiff. A second representative plaintiff was then added who fell within the definition of “consumer” under the Consumer Protection Act, 2002 S.O. 2002, c. 30, (“CPA”) which bans mandatory arbitration clauses in consumer agreements. The second representative purchased his computer before the effective date of the CPA but his claim did not arise until after the CPA’s effective date, when his computer failed.

A five member panel of the Court of Appeal concluded unanimously that clauses requiring arbitration and precluding the aggregation of claims have the effect of removing consumer claims from the reach of class actions. “The seller’s stated preference for arbitration is often nothing more than a guise to avoid liability for widespread low-value wrongs that cannot be litigated individually but when aggregated form the subject of a viable class proceeding.” In dismissing Dell’s appeal, the Court also held remarkably that no stay should be granted in relation to the non-consumer claims because of efficiency concerns. It is difficult to reconcile this conclusion on the non-consumer claims with the mandatory stay language in the Arbitration Act.

So, three years after Griffin issued his statement of claim, the action has been certified as a class proceeding. Perhaps, in another three or four years, some of the folks who bought Dell notebook computers (between March 2003 and May 2005) might have a judicial determination of whether they are entitled to a remedy. By 2013 or 2014, if the plaintiffs succeed or achieve a settlement in their action, how many of the 118,629 purchasers will still have their notebook computers or be around to collect on a judgment or take up a settlement? 

In this writer’s opinion, most consumer disputes can be dealt with much more efficiently and effectively through arbitration than litigation. It is acknowledged that some arbitration rules can present an unfair deterrent to the prosecution of consumer claims. However, perhaps it is time to amend the CPA to permit business parties to include in their standard sales terms a set of arbitration rules that the Act would prescribe in order to offer consumers a cost-effective and timely method of resolving disputes. The CPA could also provide arbitrators with the power to consolidate consumer arbitrations involving common facts. Such procedures would be far more effective for both sides than many class proceedings which become bogged down in disputes about which plaintiff’s counsel will take the lead in prosecuting the claims and where, as the Griffin case shows, years can go by with the parties arguing about whether the matter is properly a class proceeding regardless of issues of arbitrability.

*Randy A. Pepper is a mediator and arbitrator with ADR Chambers and a barrister in Toronto who acts on a variety of international and domestic mediations and arbitrations.

Iris L. Pichini*

The second installment of a three-part essay. Part one was published in the previous newsletter.

Implications of Mediation as an Institution

Having laid out Foucault’s philosophy in “Part One” of this paper, the discussion now turns to examine what effects such notions of “power/knowledge” regimes and the imposition of subjugated truths have on the construction and maintenance of gender within mediation discussions. It is in conceiving of discourse as “a social and political entity - the means by which what we know of the world [is] created rather than simply presented”¹ that Foucault aligns his concept of power to knowledge. More specifically, he argues that the networks of relations of power through which power circulates cannot be established and maintained without the production and dissemination of supporting truths, which are transmitted and sanctioned through discourse. This mode of analyzing power focuses not on the central power of the sovereign or state but on the “power of extremities;” namely on the techniques, instruments and practices exercised by institutions who have a vested interest in defining what counts as truth, and in codifying and categorizing knowledge in particular ways.² Foucault argues that systems of codification are political and lead to norms, deviations, patterns, understanding and action and define what is appropriate learning and knowledge.³ As knowledge is power, and power operates through discourse, mediation, as a system of institutional discourse, constructs its own truths or concepts of reality which in turn shapes identity. This conception of power/knowledge through discourse is of considerable importance to the discussion of gender construction and its effect on researchers’ observations on how women mediate. It sets out the manner in which institutions create systems of definition and codification of knowledge, and attributes significance to the central function that professionals, such as mediators⁴ as agents of such institutions, play in the production of truth and in the organization and distribution of power and control. 

Along this line of thought, mediation can be argued to be a form of institution in light of two main arguments:

Institutional View of Mediation

Firstly, it may be argued that mediation is an institution in that it operates within the context of legal dialogue; that is to say, mediation is a subset of the law which Foucault holds to be an institution in and of itself. The implication of this assertion for mediation is that as the law itself is itself patriarchal, the rules and forms of decorum that are set up for the proper execution of a mediation discussion (rules about what can be said or not said, by whom and to whom something may be said, in what context, and at what time during the mediation, etc.) may reflect this same patriarchal nature. Stemming from the premise that identities are shaped by discourses and dominant social and cultural practices, it follows that mediation, as a discourse framed within and shaped by the larger institution of law which is itself patriarchal, in turn shapes the subjectivity of the disputing parties in conformation with the larger patriarchal discourse of law. Foucault in Discipline and Punish in fact identifies the crucial role of discourse in producing and sustaining hegemonic power, such as patriarchy.⁵ The exercise of power in the production of knowledge and truth sets up the disputants as subjects and in so doing, restructures and disciplines them in accordance with the categories that are discursively produced and used by legal professionals in order to name or identify different groups of individuals. This view exposes the foundational category of gender as an effect of a specific formation of patriarchal power. It designates as an origin and cause those identity categories made prevalent in mediation (man/woman; aggressive/passive, autonomous/relational) that are in fact the effect of the defining institution of law, and are not a real reflection of how women mediate. Rather, it shapes the subjectivity of female disputants in a way conformant to the patriarchal truths it disseminates, and affects their behavior in accordance with traditional cultural expectations which holds women to be relational (orient towards others) and men to be autonomous and controlling in mediation. This behavior is in fact precisely what Kolb’s research reflects.

Mediator as Agent of Institution

Secondly, it may be argued that mediation has its own form of discourse. It creates and disseminates its own forms of truth and correspondingly sets up its own system of power through the use of language which is central to the mediation process. This is executed in several ways. Firstly, the mediator, as an agent of the institution of mediation (which, as has been proposed, is itself a subset of the institution of law) acts as an authoritative voice of the institution in his or her practical application of the discourse underlying the rules and practice of law. In this way, the mediator carries into the discourse of mediation the patriarchal setup underlying the system of law within which the discourse of mediation operates. Secondly, this notion that mediation has its own form of discourse is also premised on the fact that although there may be no single formal code of conduct in place to regulate the various styles and practices of mediation, or even decide who may act as a mediator,⁶ there are underlying standards or guidelines that inform, regulate, and effectively monitor the conduct of mediators⁷ which in turn has the effect of shaping the mediation process itself. These underlying standards and expectations of the mediator in effect privilege or legitimize certain types of knowledge, values, skills, and processes that ultimately succeed in excluding or marginalizing others⁸ in the mediation process who do not possess such qualifications or knowledge. They set up the mediator in a position of authority in relation to the disputants (this is made evident in the introduction to the mediation whereby the mediator begins the mediation process with the recitation of his or her credentials lending to him or her credibility, the right to speak, the right to be considered worth listening to, the right to have all other discourses silenced) and hold up the knowledge of mediator as an “expert” knowledge. This authorizes and constrains the behavior of the disputants by appropriating to them the discourse of the mediator as one of truth. 

Although mediation is a process of discussion in which the decision of the mediator is not binding on the parties and it is in fact the parties themselves who are negotiating and arriving at a resolution to the conflict, it must be noted that it is the mediator who sets up the foreground for the mediation dialogue by assessing and framing the issues of the dispute for the parties. In discursively defining the conflict and framing the initial issues, the mediator not only sets the tone for how the mediation will proceed, but determines both the way in which those issues are discussed and the range of resolution possibilities. In this way, the mediator has some role in discursively setting up the conflict. In their essay “Gender and the Mediation of Conflict: Communication Differences,” professors Marcia L. Dewhurst and Victor D. Wall Jr. examine “what mediators do” in the mediation process by looking at the function of their use of language. They begin their analysis by setting out a major classification of “communication acts” explained in the research of S.L. Weiner ad D.R. Goodenough:⁹

“Substantive” acts, as the name implies, make up the subject matter of conversation. On the other hand, “management” or “housekeeping” acts, do not add new elements to the conversation, but provide a benchmark by which one conversational partner instructs the other how to treat what is being said, and how to proceed in subsequent talk. In essence, management acts “bracket” or “organize” sections of talk.¹⁰

As Dewhurst and Wall point out, of particular interest to the role of the mediator are communication management acts that enable mediators to “reframe,” “paraphrase” or “summarize” disputants’ messages and thereby control the mediation process. As a communication act, the function that reframing, paraphrasing or summarizing performs in a conversation is termed a formulation.¹¹ Formulations serve as “comments on talk, providing proposed interpretations of the sense of the conversation so far” and they provide for some order in the conversation. Heritage and Watson observe that “utterances are often subject to misinterpretation, and that understanding often comes from producing a transformation or paraphrase of the utterances.”¹² This mode of transformation is of particular importance in recognizing the power of language to shape the parties’ perception of conflict in that paraphrasing, while seeking to preserve the relevant features of the conversation, reflects what the “paraphrasor,” namely the mediator, understands to be true of the conflict. Hence, this recasting by the mediator of what is said by the disputants in the course of mediation serves to effectively delete or at least transform the conflict in some way. Formulations provide a commentary on the conversation situation thereby allowing the mediator to manage roles.¹³ This is illustrative of the role and power of language to shape the mode of thought, attitude, and corresponding performance of the disputants. The ways in which language specifically shapes the performance of gender will be further explored under the section Power, Language and the Construction of Gender of this paper.¹⁴ 

Lastly, having demonstrated how mediation, as an institutionally located discourse, carries with it certain assumptions of truth which shape the subjectivity of the disputants, it is important to quickly assess how the mediator’s own idiosyncratic views of the nature of a conflict or of the parties involved also has an effect on shaping the identity of the parties and the outcome of the mediation. This is of importance in that the mediator, though held up as an expert and therefore active in the production and dissemination of institutionally instated truths, is as much a part and influenced by the discourse in which he/she functions as he/she is of influence on the disputants involved in the mediation. Hence, the manner in which the mediator assesses and interprets the proper context in which the dispute should be resolved, and the manner in which he or she assess the disputants, has a profound effect on how the identities of the parties are shaped in the mediation. Because the mediator is arguably not neutral,¹⁵ he/she brings with him/her certain conceptions about how the dialogue between the disputants should be set up and should progress in order to reach a resolution. Also, the style or model of mediation that the mediator adopts will assist in shaping the conflict. For example, in using an “evaluative” style of mediation in which the mediator assesses the legal merits of the disputants and offers evaluative information on possible legal outcomes, or in using a “transformative” where the goal of mediation is to change either the characterization of the dispute and/or the attitudes of the disputants (by altering their appraisal of each other and their place in the world)¹⁶ the mediator effectively relinquishes his or her neutrality and becomes a negotiator in the mediation process itself. I make this claim on the basis that the mediator, in making assessments of the dispute, inevitably brings to the process, deliberately or not, certain ideas, knowledge and assumptions on the role of each party in the conflict, their ability to effectively negotiate, and how the mediation itself should be framed in order to best assist the disputants in reaching a settlement. Expectations or preconceived notions that the mediator may bring to the table about how the parties should in accordance with stereotypes (i.e. the conception of women are passive negotiators, and men are aggressive negotiators as noted by Kolb in her research) may inform how the mediator will set up issues and how they will interact with the disputants. This, in operation, has an effect in shaping the subjectivity of the disputants which ultimately effects how the parties interact in the mediation process and how they are perceived by the mediator and the other party involved, which may in turn have an effect on the outcome of mediation.

Implications for the Mediator

The poststructuralist view of identity as a social construct that occurs through discursive relations with others brings to light many implications for the mediator. As Bagshaw suggests, there is a need for mediators to be mindful in their choice of language, interpretations and the meanings they ascribe to a disputant’s identity. In categorizing and labeling disputants and their conflict, the mediator may hamper opportunities for the disputing parties to arrive at an agreement on their own based on their own interests and understanding of the conflict. This also has the consequence of reinforcing the power/knowledge of the mediator which may have the effect of excluding or marginalizing the truth and meaning a party ascribes to her own subjectivity or to the conflict they sought out to resolve. Additionally, Bagshaw proposes that characteristics such as those that have been traditionally linked to gender (including passivity, aggressiveness, relation-oriented, autonomy) should not be automatically assigned to a person’s self-image as any one of these factors may not be seen by the person as relevant or important.¹⁷ Along these lines, she calls for mediators to avoid defining or conceiving of themselves and their role as neutral. Rather, in recognizing the influence of characteristics such as gender in constructing the subjectivity of a disputant within the discursive practice of mediation, she calls for mediators to exercise “self-reflexivity” which demands mediators to “maintain awareness and control of their professional, personal and cultural biases in order to understand the standpoint of the ‘other.’”¹⁸ 

Ultimately, because dialogue for Foucault exists historically, it allows for change. This is of particular importance for the future as more women engage in mediation within various contexts. Although becoming cognizant of the function of dialogue in mediation may allow women to transcend and becoming more effective in the mediation process, as academic Gill Coleman argues, “unless those engaged in mediation can pay more attention to the dynamics of socially constructed power and the ways in which their own inventions may bring about alternatives, the potential of the new practices of mediation to bring about social change will be very limited.”¹⁹

Having examined mediation is an institutional form of communication in Part Two of this essay, Part Three will explore the manner in which gender as an identity and as a cultural pattern is reflexively reproduced in communication. 

*Iris L. Pichini is an associate in the Litigation Group at Lawrence, Lawrence, Stevenson LLP. Her practice covers a broad range of complex matters, including corporate/commercial cases, landlord and tenant disputes, collections, and estate litigation. She can be reached at ipichini@lawrences.com

_________________

¹ A. McHoul and W. Grace, The Foucault Primer: Discourse, Power and the Subject (Melbourne: Melbourne University Press, 1993) at 13.
² Bagshaw, supra note 10 at 2.
³ McHoul and Grace, supra note 16.
⁴ Bagshaw, supra note 10 at 2-3.
⁵ Bagshaw, supra note 10 at 3
⁶ As the interest in mediation as a tool for resolving dispute increases, so too does the pressure to instate formal training programs and set standards for who should be able to mediate (i.e. it has been suggested that mediators should perhaps have legal training, or should be licensed in order to practice mediation) and how they should mediate (i.e. what techniques to use and what qualifications in terms of the education, skills, experience a mediator should have in order to ensure good practice).
⁷ This includes what standards and procedures are agreed to between the parties and the mediator in the retainer, and also codes of conduct and modes of formal training that have been set up more formally by organizations such as The Arbitration and Mediation Institute of Ontario Inc. or ADR Institute of Canada
⁸ Ibid.
⁹ S.L. Weiner & D.R. Goodenough, “A Move Toward a Psychology of Conversation” in R.O. Freedle ed., Discourse Production and Comprehension (Norwood: Ablex Publishing, 1977).
¹⁰ Marcia L. Dewhurst & Victor D. Wall Jr., “Gender and the Mediation of Conflict: Communication Differences” in Anita Taylor and Judi Beinstein Miller, eds., Conflict and Gender (New Jersey: Hampton Press, Inc, 1994) 281 at 283.
¹¹ J.C. Heritage & D.R. Watson, “Formulations a Conversational Objectives” in Anita Taylor and Judi Beinstein Miller, eds., Conflict and Gender (New Jersey: Hampton Press, Inc, 1994) 281 at 283.
¹² Ibid.
¹³ Dewhurst & Wall, supra at 283.
¹⁴ Power, Language and the Construction of Gender will be explored in “Part Three” of this essay to be published in a subsequent issue.
¹⁵ There have been several arguments put forward on the possibility of impartiality on behalf of the mediator. Although impartiality or neutrality is a general standard set out under The Model Code of Conduct for Mediators and is expected of every mediator who is a member of the ADR Institute of Canada, Inc. or who accepts appointments from the Institute (every Mediator must adhere to the Code as a minimum), many critics have challenged the assumption that a mediator can offer objective neutrality.
¹⁶ Gemma Smyth. Power Point Presentation- “Intro to Mediation.”
¹⁷ Bagshaw, supra note 10 at 8.
¹⁸ Ibid at 2.
¹⁹ Gill Coleman, “Gender, Power and Post-structuralism in Corporate Citizenship: A Personal Perspective on Theory and Change” JCC 5 (Spring 2002), online: <http:// www.siyanda.org/docs/CSR_gender_power_gill_coleman.pdf> at 18.

Reviewed by Arthur Fish

Just Listen: Discover the Secret to Getting Through to Absolutely Anyone

by Mark Goulston

Hardcover, 256 pages
Publisher: AMACOM (September 15, 2009)

Although this book is not aimed at mediators, the straightforward techniques described by psychiatrist Dr. Mark Goulston are directly applicable in mediation. 

I come to this book as a lawyer who has spent many years dealing with people under intense pressure. I advise families with disabled relatives, often young men with schizophrenia or bi-polar disorder or parents suffering from dementia, and mediate intra-family disputes over estates or the care of elderly people. I have read numerous books that purport to offer advice on dealing systematically with “difficult” people or situations. This extremely helpful book is the only one that genuinely and fully delivers on its promise. I recommend it highly to all mediators, and to anyone who needs to elicit human co-operation from people – parents, children, spouses, colleagues, clients - who are inclined to withhold it.

The book is clearly written, well edited and thoughtfully formatted. Like most management or business advice books it is structured around real life vignettes. These are all believable, well chosen and avoid the wooden lifelessness that mars most books of this genre. The book is a smooth and pleasant read, but this smoothness in a way masks, probably deliberately, its strengths and those of its author. 

Dr. Goulston’s prescription is based on the human brain’s inherent tendency to mirror back others’ conduct. We all tend to laugh when others do – even when we do not know why they are laughing. And we all long to be understood by others. By tapping into peoples’ feelings and “mirroring” them back it is possible to help them move quickly from stubborn resistance to a more open-minded posture. This potted description of Goulston’s approach may sound simple-minded, to which one can only reply that it works. This is not some academic model based solely on lab research or a computer driven model of brain functioning.

There is no doubt in my mind that this book emerges from considerable practical experience, combined with ongoing study. Goulston understands human needs, and his main lesson is that we must all strive to grasp our own and satisfy those of others. In his foreword he notes that he had to cut away a long chapter on the brain. This was a sound editorial decision, but one hopes that such a chapter will see the light in another, different book. There are numerous moments in the book – for example a seemingly offhand comment on the role that disturbed object relations plays in generating workplace violence – that demonstrate the hidden depths of Dr. Goulston’s knowledge. I suspect that the editorial hand was wielded a little too harshly in the last section of the book which is based on more complex real life scenarios, and that it has been pruned back to maintain consistency with the truncated presentation of brain function with which the book begins. This is a shame, but one that I suspect will be rectified in a book yet to come.

Dr. Goulston stipulates that many business people have a prejudice against psychiatrists and psychiatry. This is certainly true of many people who participate in mediation, and one can learn from Dr. Goulston’s example how to deploy lessons from psychiatry and neurology in the mediation setting without compromising the mediator’s neutrality. To avoid the force of this prejudice Goulston does not openly discuss the benefits that accrue to those who apply his advice in practice, but the simple truth is that he opens a path to becoming a better human being in the midst of the increasingly inhuman pressures of the contemporary workplace. In this connection Goulston offers the reader illuminating glimpses of his own humanity, including his difficult relationship with his father; his mature skill at supporting beleaguered women and opposing bullying, narcissistic males; and, most enjoyably, his high-energy mischievousness. In sum, this is an entertaining, helpful book.

Arthur Fish

Kathleen Kelly* and Sonu Dhanju**

A Joint Program of the Civil Litigation and ADR Sections of the OBA: Effective Advocacy in Mediation Under the New Rules

Discoveries, Motions, Experts and ADR – Appropriate Dispute Resolution

The topic in the fourth and final stop in the Passport series explored how ADR, viewed as “Appropriate Dispute Resolution”, is more than mediation. The focus of the Passport Series was on individual areas of litigation practice that have undergone significant change as of January 1, 2010 under the Rules of Civil Procedure.

The goal of the series was to:

• demystify the New Rules;
   
• provide counsel with practical tips and advice;
   
• identify timely and useful strategic steps to address clients’ needs and interests; and
   
• explore key processes in the conduct of litigation to get the case settled or, if not settled, at least one step (or more) closer to trial ready.

Master Ronald Dash, Administrative Master, Toronto Region, joined strategic counsel Stuart Svonkin of Torys LLP and Nestor Kostyniuk of Kostyniuk & Greenside; and mediation specialists and program Co-Chairs Anne Gottlieb, Chair of the CBA ADR Section; and Kathleen Kelly from the Civil Litigation Section to explore how to strategically use mandatory mediation and other ADR processes to maximize litigation outcomes for your clients.

Attendees were reminded that for certain cases trial remains the most appropriate dispute resolution process but, as Justice Beaudoin said at the program on motions, ninety percent of all actions are actually “fact” suits rather than ‘law” suits, and are appropriate for mediation.

Master Dash led off the panel discussion by identifying two major changes to the mediation rules and three changes to the pre-trial rules. Only the changes and the effect of the changes to the mediation rules will be covered in this article.

With respect to mediation, the timing and enforcement of the requirement to mediate within the timelines have changed. The rule – with the noted exceptions for particular types of cases - will be the same in Toronto, Ottawa and Windsor. Instead of having 30 days from the filing of the first defence to choose a mediator and file Form 24.1A (Notice of Name of Mediator and Date of Session), and having 90 days from the filing of the first defence to hold the mediation session, the timeframe is now 180 days for both the filing of Form 24.1A and/or to hold the mediation session. There is also now more flexibility.

If a party files one of the following with the mediation co-ordinator within 180 days of the first defence:

• Form 24.1A
   
• mediator’s report
   
• notice that the action has been settled
   
• court order varying the time limits
   
• consent to postpone the mediation

the mediation co-ordinator will not assign a roster mediator. The Rule will be followed (strictly) in Ottawa and Windsor as the co-ordinator must assign a roster mediator if one of the above is not filed. In addition, Ottawa will be enforcing the transitional 180 day rule from January 1, 2010 for older proceedings. In Toronto the practice will differ; the mediation co-ordinator will not be monitoring the timelines nor assigning mediators unless requested to do so by a party or counsel.

In Toronto Region the key date to be wary of for the scheduling or holding of the mediation is when the case is set down for trial. A new development in Toronto is that an action cannot be set down for trial or a trial record filed, unless a signed certificate (this is a new form) is filed confirming that a mediation occurred or an exemption was granted. With no monitoring of the 180 day timeline and the ability to postpone mediation to as late as the action being set down for trial, counsel and parties have to be mindful of Rule 48.14 – and the issuance of a status notice if the action is not set down for trial after two years of the action being commenced. Notice of a status hearing means a timetable is required and the action must be set down for trial within 90 days. Failure to act until the last minute will result in not being able to schedule mediation and the action will be dismissed.

As before, it is still possible to abridge the time for mediation if someone feels that an earlier mediation is appropriate.

Master Dash gave three practical tips with regard to mediation: 

1. Avoid the last minute or December 31st syndrome;
    
2. Agree on dates ahead of time so that the Form 24.1 can be filed;
    
3. Non-roster mediators have a habit of not filing the Mediator’s Report. Accordingly, make sure the Report is issued and sent to the Court or you can’t set your action down for trial.

Tips from Strategic Counsel: 

Both Nestor and Stuart encouraged counsel to be concerned about timing of all the foregoing and to think strategically about their own case management techniques. Timing requires everyone to sit down and ask when mediation is most appropriate. 

• Both recognized that in several cases the mediation can’t be scheduled within 180 days especially, if you are still developing the case and obtaining appropriate reports. It takes time to put a case together, to know what it is worth and to put the best face on it.
   
• Counsel may need to see the other party’s(ies’) documents, where there are pertinent documents, and may need to conduct their internal investigation, including getting help from experts. Civility is important, and should rule. Exchange productions on time, get and fulfill undertakings in time, etc. It is tough to get dates but counsel should work together and use R. 24.1.09(3) to agree to an extension when required.
   
• Nestor said: be mindful of the 6 month mark, July 1, 2010. If you don’t have a mediation set already, you may face a roster mediator. If you are booking a mediation, be sure that it has in fact been booked and someone has filed a Form 24 to make sure the Court knows that you have a mediator, and a date, for the mediation session. Make sure the report is filed immediately.
   
• Stuart said: the 180 day regime is going to inculcate within counsel what they should have been doing – namely a preliminary determination to ask whether early mediation will be productive or whether one or more of the parties really need to do some more work before they can come to a determination of the value of the case.
   
• For cases that will benefit from early mediation, waiting until later can be counter-productive because every dollar spent on discovery is a dollar not available to settle or to put on the table at mediation. The litigation process, notwithstanding the application of civility, makes parties harden to their position. 

Stuart and Nestor also answered the following questions.

1 ) If we assume all cases must or will go through mediation, what steps do you take or procedures do you follow to maximize each activity and interaction you have with the client and the file?

• Stuart said: your strategy should always be to look at what you will need, and that gets easier with practice. Keep lines of communication open with other counsel – use the phone. The old standard of picking up the phone and asking why it can’t get settled is most important. Always know the result you want at the beginning. Know what you want to achieve.
   
• As you go through mediation, figure out who is the key decision maker. Try to identify who is calling the shots.
   
• Stuart said: all of us have the ethical responsibility to resolve cases – that has not changed. It is a continual and integrative process. You have to reassess your strategy at all steps if something affects your strengths and weaknesses of the client’s case.
   
• Pick up the phone – that’s good advice. You can’t have the same kind of collaboration over email that you can over the phone. Hearing what the other side is thinking about the timing of a mediation will be much more productive over the phone. 

2) Strategically, how and when do you bring in experts? What does the absence of an expert report signal?

• Stuart said: it is very hard to conduct a mediation if you don’t know what the expert opinion will look like. That raises timing issues - and the need to know what kind of expert you need, and what information they need. Experts are often required when there is a real technical issue at stake.
   
• People are reluctant to lead with their chins out. They are scared to put their expert report out there.
   
• Nestor said: a lack of experts can signal that it is a smaller case and not worth getting an expert opinion. In a larger, more complex case, you do want experts. If the medical prognosis in reports has changed over time, you may need to see all of the reports to determine why the reports have changed.
   
• Often your last best chance to craft settlement is once you know the competing views from experts.
   
• Both counsel said: consider arbitration and summary judgment motions to be appropriate dispute resolution processes if those processes will be faster and more cost effective. Arbitration is particularly attractive when a party doesn’t want to file proprietary information in the public court system as well as in those cases where mediation cannot effectively deal with particular discreet legal issues. However arbitrations are not always cost effective.

3) What are your tips for how to pick the appropriate mediator? 

• Stuart said: people often ask this but it’s not a one-size fits all issue. It’s just another occasion to sit and think about the particular case. Is it a very technical legal defence? Pick a mediator who will look at that. If it’s equities, pick a mediator with whom that will resonate. Or pick someone based on the special characteristics of the case and what you want the mediator to do. Know how the mediator will view and treat the information provided. Know what you want from the mediator, even if it means twisting your own client’s arm.
   
• There is also enormous value in agreeing on a mediator – if the other side needs to make a larger concession, make sure the other side likes the mediator.
   
• Nestor said: figure out who will manage the decision maker the best. Consider who the best type of mediator is, narrow it to a half dozen and then discuss with other counsel. The final choice may come down to timing – some mediators are booking a year ahead.

4) Who do you bring to the mediation? Who does the mediator want to see at the mediation?

• All of the panellists said: make sure you bring people who have full and complete authority to settle, but also bring someone with factual knowledge. The person with settlement authority may not have factual knowledge of the case.
   
• It is also cathartic for the plaintiff to attend and vent; that makes them more reasonable for settlement. They need to vent to tell their story. In an employment case they want to vent at the person who did them wrong; in a solicitor’s negligence case they want to vent at the person they think let them down. Also, there are times when you want the client to hear the words of the mediator. 

5) What indicators do you look for in the context of mediation, or a settlement conference, for persevering (staying in mediation mode) when impasse arises?

• Stuart said: sometimes it is good to have only the lawyers in the room, whereas sometimes it is good to have only the parties in the room. Think outside the box. Leaving clients alone involves courage and is often met with trepidation on the part of lawyers.
   
• Master Dash said: the kind of case that leads to impasse is the case that involves “principles”, or where the lawyers have built up unrealistic expectations. Also, sometimes you have cases that you do not want to settle because you do not want to have a precedent out there that will effect or encourage other cases. Ultimately, you have to ask the parties whether they are ready to gamble on the outcome.

*Kathleen Kelly is a member of the OBA Civil Litigation Section Executive, and a senior Arbitrator, Mediator and Lawyer kellyadr@rogers.com

**Sumeet (Sonu) Dhanju is a Lawyer at Torkin Manes LLP, in Toronto, sdhanju@torkinmanes.com

Ruben Benmergui*

On October 15, 2007, the Canadian Auto Workers union and Magna International announced they had concluded an unprecedented accord in the history of industrial relations in Canada. The parties had fashioned a new and controversial strategy for their union-management relationship which they branded the “Framework of Fairness Agreement” (FFA). This intent between Canada’s largest automotive employer and Canada’s largest private sector union challenges a conflict resolution rubric over 100 years old, designed to instill stability through a system of statute law, initially enforced by labour courts, and subsequently through administrative tribunals. The agreement was instantly attacked by the majority of the labour movement, particularly the relinquishment of the right to strike for union recognition.

Sell-out! Betrayal! Lapdog! The signing of the FFA has evoked an unprecedented barrage of accusatory emotions among Canadian labour leaders in a movement whose founding tenet and cri-de-guerre is Solidarity! In their view, the agreement concedes the fundamental and most powerful tool in the labour-management conflict continuum—the enshrined legislative right of workers to withhold services when dispute resolution fails to resolve differences among the disputants.

One dimension in the analysis of the conflict between collective rights and management rights is the issue of mandatory recognition of workers and their representatives as a remedy for unbridled employer power and refusal to voluntarily recognize workplace unions. Specifically, in the CAW’s case, there is a history of struggles for recognition. The FFA proposes to exclude the role of government in the recognition/certification process and eliminate these struggles.

Among the facts presented by the CAW were the following:

• Unionization is declining, and has been for over 30 years (30 % to 17 %).
   
• The CAW represented essentially 100% of autoworkers until the late 1980s. A decade later, density was down to under 90%, as Toyota and Honda operations expanded.
   
• Today, the CAW represents only about 70% of workers in assembly in Canada.
   
• By the end of this decade, more than one in three auto workers in Canada will not belong to the union.
   
• The CAW has only certified one new bargaining unit in auto assembly since 1987 -the CAMI plant in Ingersol.
  
  In responding to this membership decline, Hargrove told his members:
  
  “..the Magna agreement, is an example of a voluntary recognition strategy.Instead of trying to fight the employer tooth and nail to get the union in, the idea is to try to win the employer over. Reach a deal where they will not fight the union. Instead, they will stay out of the workers’ decision."

The FFA may also be characterized as a “contracting out” of the Ontario Labour Relations Act, although to what extent this is permitted by the Act may be the subject of legal challenge. It is explicit on the issue of recognition and workplace conflict resolution, but it remains a matter of further analysis, or legal challenge, whether it extinguishes fundamental employee rights in the workplace. Among these are choice of bargaining agent, the protection of a duty of fair representation under legislation, resolution other than final offer selection, judicial review, and other aspects of labour law and jurisprudence.

Further, to allege, as the labour movement does, that the CAW and Magna have created a hermetically sealed pact, free from outside intrusion does not factor in the freedom of any worker or union to challenge aspects of the FFA. In the BC Health decision, the Supreme Court of Canada reversed a 20 year position and tied collective bargaining rights to Charter rights guaranteed in Section 2(D).²

The Founding Principle of the FFA, as codified by the parties,³ is stated as:

The Company commits inter alia to contributing to the success of the founding principles by undertaking a number of enumerated actions, including investment in new products and manufacturing processes.

The Union commits inter alia to contributing to the success of the founding principles by undertaking the enhancement of stronger employee participation and commitment in the Magna production process; building higher employee morale; enhancing transparency, credibility, and trust in labour relations policies and practices.

The agreement has eight features of which the following are salient:

1. Magna employees vote to join the CAW as their only choice (no intimidation by either side).
    
2. CAW recognized as the sole bargaining agent (obviating the need for an OLRB certification process).
    
3. Collective agreement are to be negotiated with all the usual or existing features.
    
4. The Collective Agreement is renegotiated every three years; changes are ratified by secret ballot.

Arguably, the FFA is a re-statement of the traditional interests of management and labour in the workplace dynamic. It may be said however, that the FFA formally injects a large measure of pragmatism and trust in a relationship once ascribed the hallmark of “antagonistic cooperation” by a noted Arbitrator. The FFA is a private agreement committing the parties to collaboration in the attainment of mutual interests. A customized recourse process to labour dispute resolution melds, in an unprecedented fashion, both management and organized labour ideologies. See CAW website: http://www.caw.ca.

The parties seem to have obviated the certification process and excluded third party intervention in the form of legislation, government, or by administrative tribunals in the formation of a union. In addition, 

• Management commits to voluntarily recognizing the CAW as the sole bargaining agent for covered employees.
   
• There appears to be no choice in choosing other than the CAW as the representative of the workers.
   
• In the matter of “Check-off” of union dues, while they are authorized under the FFA, there is no mention of “Rand Deductees”.
   
• Significantly, the FFA calls for no strike and no lockout, while the OLRA specifies the same during the life of the collective agreement.

On the one hand, the structure (and language) of the FFA is aligned with traditional labour relations modalities and legislatively mandated conflict resolution systems. On the other hand, it can be said that there is an earnest attempt to innovate by introducing a structure, whose hallmark is the attenuation or elimination of traditional labour relations conflict. Certainly, if semantics are of importance in the labour relations dispute resolution rubric, referring to the Grievance Resolution Process as the “Concern Resolution Process”, establishing an “Employee Relations Review Committee”, a sub-committee named the “Concern Resolution Sub-Committee”, the “Open Door Process”, “Employee Advocate” instead of “Shop Steward” or “Committeeman”, and emphasizing “Neutral” Arbitration, may bring these labels within the ambit of the oft-quoted dispute resolution principle of negotiating on interests not positions. It may be a trite point, but “Grievance” for some, is an inflammatory trigger which may instantly draw a line in the sand among disputants; a line usually movable only by recourse to a third party.

It may be, at this nascent stage of this new cooperative initiative between the CAW and Magna management that organized Labour’s response is rooted in emotion, ideology, and fear of loss of bargaining power, rather than an objective, critical and visionary perspective. Framed another way, it is ideology (House of Labour) versus pragmatism (CAW). Magna and the CAW are committing to the development of a new, innovative, flexible, and efficient model of labour relations.

Current economic conditions in the industry have relegated the Framework of Fairness to the “back burner”. It therefore remains the purview of more extensive research and analysis as to whether the CAW and Magna have fashioned an effective and voluntary conflict management system as a viable alternative to traditional, mandatory and legislated ADR frameworks which allow the parties to traditionally consign the parties’ dispute resolution philosophy and obligations to merely one clause in the collective agreement.

For a Bibliography on the Framework of Fairness Agreement please contact Ruben Benmergui at rubenb@sympatico.ca

*Ruben Benmergui BA, MIR, LLM (ADR) Candidate, CHRP is a certified human resources and industrial relations professional with over 30 years of experience in all aspects of human resources management and labour relations and dispute resolution. He can be contacted at 613-853-4167 or rubenb@sympatico.ca

_________________

¹ A yellow-dog union, sometimes also known as a company union, refers to an employee association calling itself a trade union but which, in fact, is affiliated covertly, or which is operated openly by an employer.
² Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391
³ The full text of the agreement is available at: www.caw.ca/campaigns&issues/ongoingcampaigns/magna/pdf/FF_Agreement.pdf

Barbara (Franklin) Martyn*

Award of Excellence

As we reflect back on the past year and the past decade, we cannot help but be overwhelmed on how the increased use of mediations and arbitrations has changed the landscape of resolving disputes. Is there any better job satisfaction than a client turning to you as the mediator at the end of the session with the words: “Thank you. You gave me back my life today.”

Celebrating the excellence of one of our members in the area of Alternative Dispute Resolution is one of the highlights of the year. We are now calling for nominations for this year’s award. Nominations will be accepted until April 1st. Click here to dowload a nomination form and learn more about the award.

I would encourage you to consider mediators and arbitrators who are leaders in their field, who have contributed to the robust ADR community, who have been innovative, who contribute by their writing or speaking, who have a special talent for reaching consensus and by doing so, promote all that is good about ADR.

CBA Mid Winter Meeting of Council

Skating on the Rideau Canal, enjoying the ice sculptures and taking in the other activities of Winterlude and meeting CBA members at the Supreme Court of Canada. These were the side benefits of attending the CBA Mid Winter Meeting of Council in Ottawa on behalf of the National ADR Section.

The full program included the National Sections Council and Conference Chairs Joint update on the Friday, followed by council meetings on Saturday and Sunday.

It was a fabulous opportunity to see the ambitious work of the CBA at both local and national levels and around the world. It was also a gratifying reminder of the work of the profession and the volunteer commitment taken up by so many for the advancement of civil justice.

Collaboration

The collaboration that is driving the work of many sections and committees of the CBA is also driving the agenda of the ADR Section in Ontario.

A subcommittee of the ADR Section Executive had a very successful meeting with representatives of the ADRIO (Alternative Dispute Resolution Institute Ontario) to discuss collaboration of programs and advocacy. As well, a joint program between the ADR Section and the Civil Litigation section was held on February 22, 2010.

Collaboration in the area of Estates Law is also an exciting and new development. There is a half-day program planned for Wednesday April 7, 2010 to introduce the collaborative law process to those who may be interested in developing a collaborative practice in this area. Anyone who would like more information about this program may contact Darren Lund at darren.lund@blakes.com.

Upcoming Programs

New Rules, New Opportunities: With the change to the Rules of Civil Procedure, what are the implications and the opportunities for ADR practitioners? This exciting program will be held on Tuesday, April 27th at 5:00pm – email updates to follow! Click here for program details and to register.

Mediating Multi-Party Disputes: Mediating with more than two parties often become mediations within mediations. Interesting, challenging, and often overwhelming, these mediations require considerable skill. This May program will be beneficial to those mediators at the beginning of their careers and more experienced mediators. Email details to follow!

I look forward to receiving your nomination for the Award of Excellence and seeing you in April at the New Rules, New Opportunities workshop.

*Barbara (Franklin) Martyn, Taylor and Martyn Mediators, ADR Section Chair.