Articles

S. 1 of the Arbitration Act 1991 provides that an arbitration agreement is “an agreement by which two or more parties agree to submit arbitration a dispute which has or may arise between them”. The failure to properly describe the obligations of the parties in an agreement can completely frustrate the purpose of the agreement.

Mediation is an interesting alternative to court that provides an arena for a unique interplay between the parties, and the dimensions of their dispute. The mediator exerts an influence that can significantly impact the outcome of the mediation process. Where two mediators are present (as is the case in the co-mediation model), there is a significant opportunity for even greater success…or self-sabotage!

A recent Ontario Court of Appeal decision that has the employment law bar abuzz is a lesson for all lawyers (and mediators) about the limits to both our knowledge and our powers of prediction.

The use of the joint session in mediation has been a hot topic of study and debate in recent years. I have weighed in on the discussion. In June 2015, I questioned whether the joint session was a help or a hindrance and then in December 2015 I revisited the debate to offer my thoughts on why the joint session remains an important part of the mediation process.

In addition to practising as a mediator, I regularly attend mediations of civil disputes as Settlement Counsel – a lawyer who settles cases through negotiation as early as possible, rather than gradually preparing them for a hearing on their merits[1]. As Settlement Counsel I approach mediation differently than when I was a conventional litigator.

Can the mediator get the job done and close the deal? Sometimes, one or the other or both of the parties are not there with the intention of settlement. You can only lead a horse to water; you cannot force it to drink.

In this fourth article, I will discuss how mediation parallels many of the philosophies found in the legal culture of cooperation.

Unlike my previous posts, this one is not intended to be funny (whether or not you actually found the other posts to be funny is another matter). Nevertheless, I encourage you to read on as the story and opinions that follow could save you money, time and grief and may even lead to deep personal fulfillment -- although I am pushing it with that last one. At the very least, it is a refreshing change from reading depressing news stories or watching another cat video.

Litigation is a lengthy process that often takes litigants to the point of exhaustion. Yet while lawyers are accustomed to a file lasting months, or even years, litigants usually are not. Lawyers are responsible for remaining objective, and not getting emotionally involved in the dispute. For litigants though, it is far too easy to become fully embroiled in combat, with each new step re-fueling the initial anger that brought litigation forth in the first place.

In this third article, I will discuss a second legal culture of cooperation that has emerged as a result of a changing legal landscape, that exists alongside the traditional adversarial one.