Alternate Dispute Resolution

1. Brian Deena Khesrau Neha Nilofar Raaj Zamir Group Presentation – March 29, 2012 Alternate Dispute Resolution

2. Alternate Dispute Resolution Brian

3. ADR ADR is a term used to define a set of approaches and techniques aimed at resolving disputes in a non-confrontational way. In a civil law context, ADR represents any number of techniques and processes utilized by parties in dispute that allow for agreements and settlement outside of the litigation process.

4. Some General Features of ADR • Support for the development of guiding principles and values. • Commonly identified values included confidentiality; party self-determination; neutrality; balancing power; ensuring fairness of process; achieving settlement and maintaining the reputation of the resolution facilitator. • Pervaded by faith in a rational approach to problem solving generally. This rational approach must be flexible enough however, to factor into the resolution process, vast dimensions of human psychology and the entire spectrum of human emotions that can be engaged by civil law disputes. (It goes without saying that this is no easy task). • ADR requires the facilitation of a third party neutral. These include arbitrators, mediators and negotiators.

5. Approach • For the sake of brevity, this presentation focuses primarily upon a general outline of Arbitration, Mediation and Negotiation as they exist within a civil law context. The reason for constraining this paper to a consideration of only these three forms of ADR is because most of the key principles applied to and underlying these three processes pervade virtually all forms of alternative dispute resolution.

6. Arbitration • Most formal in nature. • Arbitrations within a civil law context are generally designed to be binding. • The single most important distinction between arbitration and mediation therefore is that the decision of the arbitrator, unless otherwise agreed, will be binding and the decision may be entered on the court record. • More generally an arbitrator is invested with the authority to impose a resolution to a dispute.

7. Mediation • Leaves the decision making power in the hands of the disputants. • Process is directed more by the needs and interests of the disputants themselves than by the decisions of a third party arbitrator. • Mediation is voluntary; nothing happens without the parties' consent (except for mandatory mediation in some legal contexts). • The parties retain a high degree of control. The mediator does not make a decision, but rather works with the parties to assist them in finding a solution to the dispute that is satisfactory to them. • Mediation does not determine right or wrong. (Is this inconsistent with the pursuit of justice?) • In Canada Mediation has been entrenched in statutory provisions • In the Educational front, law schools and graduate programs have introduced courses in mediation and alternative dispute resolution .

8. Negotiation • Negotiation requires parties to bargain without outside assistance, exchanging compromises to reach a solution. In this approach parties can begin bargaining discussions at the beginning of a dispute without the presence of legal representation. • Like mediation, settlement discussions within a negotiation context are controlled entirely by the parties • For negotiation to succeed, it requires the complete cooperation of the parties. If participants lack the necessary motivation to resolve the conflict through compromise, settlement will be difficult if not impossible

9. General Requirements for Successful ADR • Depends upon the goodwill of all the participants • Parties must believe that a settlement achieved through cooperation and compromise whether assisted by a mediator, arbitrator or the parties themselves, will be superior to the decision that would be handed down by a court • Participants must agree at the outset that all sides involved enjoy equal authority in reaching a settlement. • Important objectives must be identified and lesser objectives subordinated in favour of a desired outcome • Empowerment of the participants at every step of the settlement process is essential • ADR mechanisms require that any involved organization be represented by persons with sufficient authority to bind the organization they represent. • As a corollary to the involved parties dedication to the settlement process, a commitment to open and equal access to information is necessary

10. Criticisms and Concerns • ADR lacks legal recourse against a party that refuses to honor a negotiated settlement • In many instances there is no means to compel the continuance of an ADR process where one of the parties ceases to cooperate. • Compensation in ADR is largely undefined. • Advocates of mediation point out that this process allows parties to resolve conflict in a conciliatory fashion without resort to an authoritative third party, arguing that mediation decreases the costs of dispute resolution and reducing demand on court resources and allows conflict to be resolved at a much quicker pace. • Critics contend that the virtues of mediation are largely overstated. They argue that mediation creates a second class justice system in which the safeguards of procedural justice are sacrificed to cost, speed and efficiency

11. Criticisms and Concerns • Based on the available evidence in the form of the proliferation of ADR alternatives in a civil law context, one inference that could reasonably be drawn is that the ADR phenomenon itself is directly linked to the frustration of participants exposed to the formal justice system and to a general perception of formal legal procedure as often ponderously slow and inefficient • Additionally the increasing demand for ADR alternatives further gives rise to questions concerning the burgeoning of a new profession • Would a movement towards regulation of the practice take ADR outside of the informal realm altogether, undermining the general perception of a genuine alternative to formal procedure? • Questions concerning the qualifications of effective ADR practitioners remain

12. Some Interesting Perspectives on ADR • Several approaches to ADR recognize the importance of a conflict’s narrative. The role of the ADR facilitator in this view is to shape the negotiation’s narrative. This view attaches profound relevance to narratives of conflict generally and presumes that every conflict is authored from particular perspectives. • There are very important distinctions to be made between conflict within the context of a trial versus the way conflict in an ADR context • An ADR facilitator on the other hand plays a role in focusing and shaping the narrative of conflict but the involved parties play have a more active role in structuring the outcome of the narrative and of editing the narrative at every stage of the process. • In this view recognizes that throughout an ADR process, objectives are defined and concessions made yet the crafting of a settlement may very well be best described as the construction of narratives of possibility

13. Interesting Perspectives on ADR • Real constraints must be recognized and acknowledged yet from these perceived limits alternatives are explored with a view towards achieving mutually agreeable outcomes. • ADR represents a fundamentally different approach to conflict than the traditional justice system model and is also consistent with the kind of paradigm shift referred to and discussed by Jensen. The crafting of win-win solutions within an alternative dispute resolution context can be likened to an art form wherein parties are guided towards authoring their own outcomes. • The consequence is an empowering one, elevating parties to conflict to a level that allows them to take a degree of authorship over the conflict itself. • ADR is in essence a process of party self-determination

14. Conclusion • There are vast psychological dimensions to both approaches to conflict. Arbitration aside, ADR methods such as mediation and negotiation move away from the traditional model of conflict resolution by adjudication. • ADR methods understood as authorial in nature, that is, understood as a process whereby the involved parties are engaged in shaping the outcome and even of reconstituting the nature of the conflict as the ADR process evolves is an exciting innovation in thinking about the very nature of civil disputes generally • Sossin asks; when cases are streamed out of the courts and into ADR, is this a measure of the success or the failure of the justice system? He suggests that the answer may simply be that it is both. • Perhaps however it is the case that the growing proliferation of ADR alternatives simply suggests the evolution of human thinking about the nature of conflict? • The further development of ever more sophisticated cooperative mechanisms for dispute resolution may be commensurate with a new sophistication of human understanding. • Perhaps it is more simply the case that the development of complex civil societies implies the development of effective, alternative and in some instances even transformative mechanisms for dealing with civil law conflicts.

15. Further Questions • Does ADR (particularly mediation) impede the pursuit of Justice? • As a consequence of the literature review conducted, various questions emerged that may be conducive to both in class discussions as well as to further research in the area of ADR. • The role of the ADR professional, who is s/he and what is her/his nature? What is it exactly that she does and who is she while doing it? • What really guides the ADR practitioner throughout the resolution process? Are the laudable principles and values applied to fact based scenarios really what propel the resolution process or are there key intangible factors at work and if so what are they and how do they impact the resolution process? • These questions have both practical and ethical dimensions and require looking at the practice of ADR as something more than simply the application of abstract principles to conflict scenarios. • The ADR professional’s intimate connection to processes and outcomes raises both practical and ethical questions relevant to just determinations of civil law disputes generally.

16. ADR - Settlement Nilofar

17. Settlement Settlement is a conciliation process in which the parties involved (the plaintiff and defendant or their lawyer representatives) make an effort to come up with an agreement concerning a dispute.

18. Significance In Canada The method of settlement in dispute resolutions have become so popular in Canada that in 2001 the Superior Court in Quebec established a settlement conference, which is governed by Chapter XII of the Rules of Practice in civil matters of the Québec Superior Court (articles 70 to 78) (Vadnais, 2002).

19. Settlement Charter in Quebec Superior Court of Québec • Settlement conference • Code of Civil Procedure Settlement Conference At any stage • Art. 151.15.  At any stage of the proceeding, the chief justice or chief judge may, at the request of the parties, designate a judge to preside a settlement conference. In their request, the parties must present a summary of the questions at issue. [...] Purpose • Art. 151.16.  The purpose of a settlement conference is to facilitate dialogue between the parties and help them to identify their interests, assess their positions, negotiate and explore mutually satisfactory solutions. • A settlement conference is held in private, at no cost to the parties and without formality. Participants • Art. 151.17.  A settlement conference is held in the presence of the parties, and, if the parties so wish, in the presence of their attorneys. With the consent of the parties, the presiding judge may meet with the parties separately. Other persons may also take part in the conference if the judge and the parties consider that their presence would be helpful in resolving the dispute. Proceeding continued • Art. 151.19.  The settlement conference does not suspend the proceeding, but the judge presiding the conference may, if necessary, modify the timetable. Presence or availability • Art. 151.20.  The parties must ensure that the persons who have authority to conclude an agreement are present at the settlement conference, or that they may be reached at all times to give their consent. Confidentiality • Art. 151.21.  Anything said or written during a settlement conference is confidential. • Would you like to settle your dispute out of court ? • Are you prepared to make the effort needed to find a satisfactory solution to your dispute ? • Do you think you could work with the other party to find a practical win-win solution ? • If so, a judge of the Superior Court may help you and the other party engage in a dialogue to find a suitable solution to your dispute. The judge will facilitate the smooth running of the conference. • The settlement conference service is • FAST : a date for the settlement conference is set without delay as soon as the parties have agreed upon a date; • FREE OF CHARGE: presiding settlement conferences are part of a judge's duties; • CONFIDENTIAL : a settlement conference is held in private; all the participants sign a confidentiality agreement which they and the judge must respect; • BENEFICIAL : reaching a settlement puts an end to the costs and to the likelihood of a trial; and • A MEASURE OF REASSURANCE: a settlement of the case will give you peace of mind.

20. Positive Outcomes of Settlements ‘cost reduction argument’: The building blocks of this argument suggests that the optimal result in a legal conflict can be attained by resolving the conflict before litigation takes place, the first attempt to settle the conflict has a great probability of success, and the remuneration of employing settlement will compensate the costs even if settlement is not the outcome.

21. More peaceful means: Settlement has also been recommended to be a better approach in the healing process of resolving disputes than are court trials. It is suggested that negotiation is better for the peace of mind or psychological mind-set of the clients involved in the case than is the long process of court trials, whose decisions consistently require remedies or even get appealed over and over again.

22. Benefits the Court system Interviews conducted by Wall and colleagues display that most judges prefer cases to be settled outside of the court system. The two main reasons as to why judges prefer settlement are that trials are not expedient and so clients will have to wait two or more years in order to get a conflict resolution, most of the time for cases clients will have to invest more time and money in preparing for the case than what it is actually worth and also judges encourage settlement as they get too many cases on their plate that they see as a burden on them and the court system.

23. ADR in Business Raaj

24. User`s Guide to ADR • ADR History • ADR Neutral – Characteristics • Mediator - patient, intuitive, conceptual, artistic, • holistic and emotional • Arbitrator - analytical, mathematical, logical, • technical and administrative • ADR Tools • Mediation • Arbitration • Early Neutral Evaluation • “Med-Arb” • Summary Jury Trials and Minitrials

25. Consumer Financial Services Litigation: Major Judgments and ADR Responses • Beasley v. Wells Fargo Bank • 1986 - Alice M. Beasley files class action against Wells Fargo • Recovery of fees and injunction against future imposition of fees • A California state court jury awarded $5.2 Million for • excessive late and over-limit fees and an additional $2 Million • in attorneys' fees • Leary v. Wells Fargo Bank • 1991 – Banks conspired to fix interest rates on consumer credit cards • Over $1 Billion in damages claimed • Wells Fargo and First Interstate Bank of California settled • The BayBanks Settlement • “Second mortgage scandals” rocks America in early 1990s • Bay Bank Inc. one of the main accused settled • $6 Million in affordable housing; $5 Million low interest loans • Restitution for 11000 customers

26. ADA: A Problem Solving Approach to Business(The Americans with Disabilities Act) • Impact on Business • 1995 – 49 million Americans with disabilities • Major income source to any business • Add families and friends to being sensitive to barriers • Partnering • Informal Dispute Resolution • Partner – a neutral with experience • Case study – access to bathroom • Mediation & Arbitration • Loss of Goodwill - Arbitration

27. ADR in Large Organizations - One Counsel`s Experience with Introducing ADR in a Corporate Setting • Stages in Periodic Review of ADR • Upon Initial Evaluation • Before engagement of outside counsel • Before commencement of proceedings • Before closure of pleadings • If discovery is ineffective • Budget review periods • Communication breakdown • Material decrease in risk assessment Continued Corporate Use of ADR Measurement and Evaluation ADR Training and Communication Building Support for ADR Institutionalizing ADR Adoption of ADR Policy

28. ADR – Aboriginal Context Deena

29. Bell, C. & Kahane, D. (2004). Intercultural Dispute Resolution in Aboriginal Contexts. Vancouver, BC: UBC Press. • ADR is not new to Aboriginal societies (i.e. tribal peacemaking) • Clash between Western and Aboriginal approaches to dispute resolution • Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 • Examples of ADR approaches in the Aboriginal context: • Tribunals and Commissions: Indian Specific Claims Commission (ISCC); Specific Claims Tribunal; Treaty Four Administrative Tribunal; Métis Settlements Tribunal • Aboriginal courts: Dene and Cree Courts (SK); Tsuu T’ina First Nation Court (AB) • Pure Aboriginal ADR processes: elders advisory panels, community committees, family group conferencing, community mediation circles

30. Victor, W. (2007). Alternative Dispute Resolution (ADR) in Aboriginal Contexts: A Critical Review. Canadian Human Rights Commission. Retrieved from http://www.chrc-ccdp.ca/pdf/adrred_en.pdf.

31. Alternative Dispute Desolution Zamir

32. Alternative Dispute Desolution • Biographical Sketch • Overview • What is ADR? • What are the Civil Procedure Rules? • Has it worked?

33. Court vs. Mediation in Canada

34. Mediating Conflict in the Workplace • Sye Landau and Daryl Landau

35. Mediating Conflict in the Workplace • Biographical Sketch • Overview • What workplace mediation Involves • Substantive component • Relationship component • Partnering

36. Alternative Dispute Resolution in Family Law Neha

37. Family Law in Canada • Family Law in Canada is governed, for the most part, by provincial law, although Federal law covers divorce.  The brief presentation will deal only with Marriage and Divorce under the Family Justice umbrella. • Federal Divorce Act R.S.C. 1985, c.3. (2nd Supp.) • Provincial Child and Family Services Act, R.S.O. 1990 c. C. 11. Children’s Law Reform Act, R.S.O. 1990 c. C.12. Family Law Act, R.S.O. 1990 c. F. 3.Marriage Act, R.S.O. 1990 c. M. 3.

38. Family Court Cases in Civil Court Dockets between 2008/2009 to 2009/2010 Source: Statistics Canada Report on Family Court cases involving child custody, access and support arrangements, 2009/2010 by Mary Bess Kelly

39. Family Court Cases by type of case

40. Half of all divorce and other family breakdown cases still active more than one year later

41. Why do these numbers matter? Children of Divorce http://www.youtube.com/watch?v=5TvsX8bJMXg&feature=related

42. New Family Structures • With fewer people entering into marriages combined with more children being born out of wedlock– result in child custody and child support cases to suffer through multitudinous legal problems. • Cases involving access were found to have a higher average number of disposition events per case (3.2) during 2009/2010 than child support (2.5) or custody cases (2.0).

43. Alternative Dispute Resolution – an option Private Settlement Arbitration Mediation Collaborative Family Law

44. Mediation vs. Litigation Mediation Ask for openness when information is being closely guarded by both parties. View the dispute as symptomatic, and the task as the reconciliation of broader underlying interests. Litigation Structures the dispute as a normative conflict, one that must be resolved through a comparison and measurement of legal rights and obligations.

45. Mediation: Process Outlined Introductory stage: setting up rules and answering questions; Definition Stage; whereby the issues on which the parties already agree are identified as well as the areas of contention Negotiation stage: focusing on individual issues to narrow and simplify the process Agreement Stage: the parties nail down the finer points of their settlement Contracting Stage: the parties attending the mediation review the agreement.

46. Mandatory Mediation • The evolution of Lawyers Roles in Mandatory Mediation: A Condition of Systemic Transformation-Michaela Keet • The civil mediation program in Saskatchewan's Court of Queen's Bench is one of Canada's first and longest experiences with comprehensive mandatory mediation. • The program found: • Increase in Lawyers confidence about recommending mediation • A significant shift in the profession’s response to mediation • clients valuation for the opportunity of a face- to- face meetings The evaluations thus far have concentrated on efficiency measures such as settlement rates, cost, time and degree of lawyer and client satisfaction.

47. Collaborative Law Innovator: Stuart Webb a Minneapolis Attorney CL seeks to realize the benefits of client participation and interest- based negotiation through the active involvement of lawyers as both facilitators and advocates. CL requires both lawyers and clients work together in open four-way sessions toward the resolution of their dispute. CL process is structured according to rules of engagement and disengagement, that are set out in agreements entered into by both clients and their lawyers. Guiding Principle: the CL agreement requires open disclosure of all material information within the four-way session and demand that lawyers cease representing their clients if the process fails to generate a settlement.

48. Collaborative Law: Underexplored Gender Power Imbalances that often led to varying, and often problematic results. There are inevitable limits on the extent to which any dispute resolution process can address inequalities in bargaining power that are rooted in social structures and relations external to the bargaining process. Mediation obscures inequitable outcomes and legitimizes them as a product of voluntary consent. Adjudication can provide a public record, provide a check on the quality of legal representation, and has the potential to generate new substantive norms, but it is also highly constrained in its ability to address poverty and inequality.

49. Gender Imbalances in Alternative Dispute Resolution Gender Power Imbalances that often led to varying, and often problematic results. There are inevitable limits on the extent to which any dispute resolution process can address the embedded gender inequalities in bargaining power that are rooted in social structures and relations external to the bargaining process. Mediation obscures inequitable outcomes and legitimizes them as a product of voluntary consent. Adjudication can provide a public record, provide a check on the quality of legal representation, and has the potential to generate new substantive norms, but it is also highly constrained in its ability to address poverty and inequality. In 2006, the Ontario legislature in recognition of the gender imbalances especially in family arbitrations based on religious laws was declared to have no legal effect with no enforceability by the courts.

50. Leading Questions With the popularity of ADR Methods as cost and time effective strategies at rise, what can be done by courts/judges and legislatures imposing mandatory mediation or collaborative law to remove gender imbalance currently shared between disputing parties? What view of the family has informed legal change? Is it a consistent view? What are the implications of that choice? Note: Is the perception informed by the marriages that existed between Mr. Brady and Mrs. Brady in the Brady Bunch or rather the common-law marriage of Brangelina with 3 biological and 4 adopted children (reflecting a fundamental shift in economical structure of our society, and market posited by liberal ideology.)