Canada: Bring Me Your Disputes And I Will Set You Free

Last Updated: November 30 2017
Article by Gardiner Roberts LLP

The Code: The Legal Mind

Process: Proof and Principles

Litigation Process ‐ The Universal Main Event

Litigation Process – Class Action

Arbitration – Process Globalization

  1. An existing dispute (not merely an unresolved issue);
  2. Parties choose neutral decision‐maker under an arbitration agreement;
  3. Expressed intention in the agreement that the decision be binding and be made in a judicial or quasi‐judicial manner;
  4. The hearing be impartial and fair;
  5. The decision in the hearing be based on evidence and argument;
  6. International arbitration (not defined in model code – see federal and provincial Acts): parties have places of business in different States when arbitration agreement is made; one of the following is outside the State where parties have places of business – place of arbitration, place for performance of obligations, place where subject matter of dispute is most closely connected; commercial arbitration acts that adopt or incorporate UNCITRAL Model Law – applicable to all provinces and federal arbitrations;
  7. Domestic commercial arbitration: modern provincial arbitration Acts that provide for domestic arbitration based on the model law; provisions vary significantly from province to province (contracting out, appeal rights and contracting out, procedural rules, administration of arbitration and deemed agreement provisions;
  8. Federal legislation: United Nations Foreign Arbitral Awards Convention Act R.S.C. 1985, C.16 (2nd Supp): Implements the New York Convention on recognition and enforceability of arbitral awards (effective May 7, 1986). New York Convention: Contracting States recognize arbitral awards; limited grounds for refusal to recognize and enforce; limited to recognition and enforcement of commercial arbitration awards made in contract in the States; 9. Guidelines: for arbitrators, awards, remedies, enforcement, legal requirements, appeals, ethics, finality.

Mediation – Process Maximizing Client's Role

  1. Pillars of Process: Contracting, story, interests, options, alternatives, best alternative to negotiated agreement (BATNA), agreement.
  2. Contracting: Engage the participants in the process of making a contract; explain the process, clarify roles and responsibilities of participants and mediator; negotiate ground rules.
  3. Defining the problem and dealing with conflict: understanding the conflict, the parties' view of the conflict (individual stories), working with the dynamics of the conflict; understanding the law – analyzing the legal risks and opportunities.
  4. Understanding interests: explore the parties' needs and interests (what matters to them going forward); generate options; evaluate options using the parties' goals, needs and interests, the law and other reference points; develop packages; test packages against parties' goals, needs and interests for stability, durability and commitment.
  5. Looking to the future: draft agreements; review, refine and improve upon agreements; have a concern for the unrepresented; determine next steps; implementation – provision for future review and modification.
  6. Identify and control: drama, narrative, identity and emotion.
  7. Trust in the mediation and commitment to trust for future action.
  8. Imperfections: dysfunctional communication and emotion; asymmetries of information; extreme "partisan perception" bias; disrespect (real or perceived); failure to understand others' views, or care; strong desire for revenge or vindication; agreement has unpalpable meaning.
  9. Process variance: preliminary work (pre‐planned, a formal evaluation phase, mediate discovery, caucuses single‐text model.

Mediation Made Simpler

Variable Five Stage© Resolution Process to early and later stage dispute assessment, strategy, risk audit assessment, mediation, arbitration, litigation and resolution.

  • Stage 1 – Setting the base for success – trust, creativity and tailoring the process, mediation/arbitration agreements, desire/pressure to resolve.
  • Stage 2 – the gathering – facts, chronology, analysis, explanations, documents and data and compiling all in a common independent programme developed on consent.
  • Stage 3 – process selection – interchange, combinations and switching: managed direct settlement negotiation or offer exchange (online or face to face), mediation, arbitration.
  • Stage 4 – expert advice – area of dispute (large corporate, closely held enterprise, estates, on‐going relationships) psychological factors, settlement design, tax implications, media, regulatory and government relations.
  • Stage 5 – philosophy – settle what is known through identifying and prioritizing legal issues and actual interests; have a process to deal with future issues if and when they arise through negotiation or arbitration.

Process – Regulatory & Criminal: Ceding Control

Strategy – Psychology 101

Business Corporations Securities
Energy Office of the Children's Guardian
Public Trustee Labour
Real Estate & Business Brokers Criminal Code
Tax Insurance
Broadcasting Transportation
Professional Complaint: Self‐regulating professions Lawyers
Doctors Nurses
Accountants Other
  • LAMS: Litigation, arbitration, mediation, settlement
  • Analysis and process – combine in a complex interaction, depending on realistic goals, timing, financial, psychological and other limitations, advantages and disadvantages
  • Impacts inside legal system – "In" Factors

    • Corporate
    • Directors
    • Public – negative
    • Securities – disclosure
    • Professional status
    • Criminal act and recovery
  • Outside legal system – "Out" Factors

    • Business and political impact
    • Publicity as a tool and a sanction

      • Resources of parties
      • Financial
      • psychological

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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