Tuesday, 3 July 2012
Just Listen
Currently I am listening to the audio book version of (the coincidentally titled) Just Listen: Discover The Secret to Getting Through to Absolutely Anyone by Mark Goulston. While it is not about mediation per se, I recommend it to all mediators or to anyone with an interest in mediation.
Wednesday, 11 April 2012
Mediation advocacy tip: Speak to the other party.
During a joint (plenary) session at mediation, a lawyer shouldn't restrict his or her comments to the mediator or even to the other counsel.
Speaking to and making eye contact with the opposing party is vital. After all, it is the party's case.
Many lawyers will only look at and speak to the mediator. However, it is not the mediator's case. The mediator is neutral and cannot make a binding decision.
Why not then speak directly to the person who has the power to settle the dispute?
Monday, 9 January 2012
GO AHEAD AND SUE ME...
“Go ahead and sue me – it will bring us closer together!”
-George Clooney in the film "The Descendants" in response to Beau Bridges'
character's threat to sue Clooney's character over a family business dispute.
-George Clooney in the film "The Descendants" in response to Beau Bridges'
character's threat to sue Clooney's character over a family business dispute.
Tuesday, 22 November 2011
Sunday, 20 November 2011
BAD FENCES & BAD NEIGHBOURS
“…you shall love your neighbour as yourself.”
-Leviticus 19:18
“Good fences make good neighbours”
-17’th century proverb
Algernon: “Got nice neighbours in your part of Shropshire ?”
Jack: “Perfectly horrid! Never speak to one of them.”
-Oscar Wilde. “The Importance of Being Earnest”, Act I.
The above quotations suggest two things: The first is that good neighbourly relations have taken a turn for the worse over the last few millennia. The second, which is probably closer to the truth, is this: Getting along with our neighbours does not come naturally. Therefore, we may need to physically separate ourselves from our neighbours in order to get along with them and, even then, we may still fail.
I would like to think that I know something about the topic of neighbourly relations gone sour. Although my own minor personal neighbour disputes of the past were generally of the “hey, can you turn your music down?” variety, my experiences as a lawyer and a mediator have provided me with some useful insights into the evolution and resolution of serious neighbour disputes that can easily become the subject of prolonged litigation and even violence.
I would like to think that I know something about the topic of neighbourly relations gone sour. Although my own minor personal neighbour disputes of the past were generally of the “hey, can you turn your music down?” variety, my experiences as a lawyer and a mediator have provided me with some useful insights into the evolution and resolution of serious neighbour disputes that can easily become the subject of prolonged litigation and even violence.
An area that is particularly ripe for conflict is when one neighbour’s fence encroaches onto the other neighbour’s land. In other words, the fence is over the boundary line (what I would call a “bad fence”). In many, but not all, cases this can lead to the encroaching neighbour being in the position to validly claim that she or he has acquired "adverse possession" (a.k.a. squatter’s rights) over the neighbour’s land enclosed by the fence. In many of these situations no one notices or no one cares for many years. However, should the situation change (for example, if one neighbour obtains a new survey, often in the context of planned renovations, or a new neighbour appears on the scene), then proximity can quickly breed contempt.
Should you find yourself in such a predicament, no matter which “side of the fence” you might find yourself on, here are some practical suggestions:
- Never take matters into your own hands – I can’t stress this enough. For example, if your new survey shows that your neighbour’s fence is encroaching onto your property, don’t take it upon yourself to move it or take it down. Nothing will attract the ire of the court or your neighbour more than a self-help remedy, even if you believe you are in the right.
- Get legal advice as soon as possible. As soon as you discover that something is askew, consult a lawyer who is knowledgeable about real property law. In many situations time is of the essence (i.e, a deadline for commencing a lawsuit to preserve your legal rights may soon run out, or your neighbour is about to ignore my first suggestion above). You need to know your legal rights as quickly as possible. As well, be sure to discuss with your lawyer the subject of title insurance, which you may have purchased at the same time you purchased your home. It may prove valuable in such a situation.
- If at all possible, try to reach a resolution directly with your neighbour. Unless absolutely necessary, starting a lawsuit or even sending a lawyer’s letter may sour things for good. Remember, in all likelihood you will have to live next door to this person for the foreseeable future. If you are embroiled in litigation, how will it feel to come home from work everyday and have to literally face an adversary in the next yard or to be separated from her by just a thin party wall? In most cases even divorcing spouses have more physical distance from each other. Unless there is a propensity for violence, try to calmly talk to your neighbour about the problem. However, I recommend that each of your lawyers “paper” any agreement in principle you might work out in order avoid future misunderstandings and to ensure that your settlement complies with the law.
- Consider mediation. If a one-on-one meeting is practically impossible, or it did not have a positive outcome, discuss with your lawyer the possibility of a settlement meeting conducted by a neutral mediator who is trained in helping parties resolve disputes. In my experience, many neighbour disputes are resolved at a mediation.
- If all else fails? If you are sued or have decided that you must sue, never lose sight of the following: Litigation is expensive, stressful, uncertain and public. Litigation also has a strange way of making people more entrenched in their positions. Don’t expect that your neighbour is eventually going to get fed up and move away. Chances are he or she isn’t going anywhere. The old notion of a “man’s home is his castle” is apt. Therefore, you should continue to negotiate whenever possible whether through your lawyers or at mediation, or both (there can potentially be more than one mediation session). Negotiation is not a sign of weakness; it is a sign of sanity. Also consider the possibility of letting an arbitrator ultimately decide your case if you cannot settle it as opposed to a judge. In many situations arbitration can prove less expensive, you have input into the choice of the arbitrator (unlike a trial judge) and the hearing and the result are not open to the public.
Finally, is it true that good fences make good neighbours? My view is that while even a properly placed, properly sized and municipally compliant fence can’t make anyone good, it can’t hurt and it can save you a great deal of grief, time and money.
Sunday, 2 October 2011
THE MOST IMPORANT LEGISLATION YOU'VE NEVER HEARD ABOUT
Did you know about Ontario's Commercial Mediation Act, 2010 ?
Chances are you haven't heard of it, despite the fact that this month marks its first anniversary.
The Commercial Mediation Act, 2010 ("the Act") is based on the UNCITRAL (United Nations Commission on International Trade Law) Model Law on International Commercial Conciliation (2002). There is similar legislation in Nova Scotia and several U.S. states based on the Model Law. Accordingly, an international regulatory framework for the conduct of mediation and the judicial enforcement of mediated settlements has been introduced into Ontario law.
The Act applies wherever Ontario law applies. The application of Ontario law would obviously depend on the circumstances of each occurrence or transaction but, presumably, the Act would apply if a business or employment contract specifies that it is to be interpreted in accordance with Ontario law. Even if such a contract did not explicitly provide that any disputes arising between the parties are to be mediated before court proceedings are commenced, the Act may still apply if Ontario law otherwise applies and the parties wish to avail themselves to the mediation process, subject to certain exceptions.
The Act is beneficial to businesspeople in that it allows for the advantages of mediation as a method of dispute resolution as opposed to litigation (such as speed, lower legal costs, risk avoidance, confidentiality) with the certainty allowed by a uniform set of rules governing the mediation process and the assured enforcement of mediated settlements by the Courts.
Here are some highlights of this brief (and hitherto "unknown") Act:
The Act applies to the "mediation" of a "commercial dispute" where the mediation commences on or after October 25, 2010 (s. 2(1)).
A "mediation" is defined as a collaborative process in which the parties to a commercial dispute agree to request a neutral person, referred to as a mediator, to assist them in their attempt to reach a settlement in their dispute, and the mediator does not have authority to impose a solution to the dispute on the parties. There are no surprises here.
What is surprising, but welcome, is the broad definition of "commercial dispute": "A dispute between parties relating to matters of a commercial nature, whether contractual or not, such as trade transactions for the supply or exchange of goods or services, distribution agreements, commercial representation or agency, factoring, leasing, construction of works, consulting, engineering, licensing, investment, financing, banking, insurance, exploitation agreements and concessions, joint ventures, other forms of industrial or business co-operation or the carriage of goods or passengers" (s. 3). This definition excludes disputes pertaining to family law and automobile statutory accident benefits disputes. As well, the Act has no application to collective (labour) agreements, computerized mediation, mediation pursuant to judicial or arbitration proceedings and mediations provided by Rules of Civil Procedure (thus, after the commencement of litigation) such as Mandatory Mediation (s. 2 (4)).
Interestingly, the parties can modify the provisions of the Act with some exceptions, or they can opt out of it altogether (s. 2(2)).
The Act provides a code with respect to the conduct of the mediations to which it applies. For instance, section 5 deals with the commencement and termination of a mediation, section 6 provides for the appointment and duties of a mediator, including the disclosure of any conflicts of interest, while section 7 sets out a code of conduct for the mediation itself.
The confidentiality of information is the subject of section 8, while its inadmissibility in arbitral, judicial or administrative proceedings is detailed in the following section.
Section 10 allows for the possibility of a mediation transforming into an arbitration (mediation-arbitration or "med-arb") on consent of the parties.
According to section 11 (1) "the parties may agree not to proceed with arbitral or judicial proceedings before the mediation is terminated" with an exception contained in the next subsection whereby
"an arbitrator or court may permit the proceedings to proceed and may make any order necessary if the arbitrator or court considers,
Mediators faced with unpaid accounts will rejoice when they read section 14, which would permit a mediator, in the right circumstances, to avail himself or herself to the enforcement provisions of section 13.
Finally, section 15 provides for the government's ability to pass regulations under the Act, although, to date, there are no such regulations.
All in all, the Act is a powerful and useful piece of legislation and one that should be welcomed by the legal and ADR communities, and by the public at large.
It's time to spread the word.
Chances are you haven't heard of it, despite the fact that this month marks its first anniversary.
The Commercial Mediation Act, 2010 ("the Act") is based on the UNCITRAL (United Nations Commission on International Trade Law) Model Law on International Commercial Conciliation (2002). There is similar legislation in Nova Scotia and several U.S. states based on the Model Law. Accordingly, an international regulatory framework for the conduct of mediation and the judicial enforcement of mediated settlements has been introduced into Ontario law.
The Act applies wherever Ontario law applies. The application of Ontario law would obviously depend on the circumstances of each occurrence or transaction but, presumably, the Act would apply if a business or employment contract specifies that it is to be interpreted in accordance with Ontario law. Even if such a contract did not explicitly provide that any disputes arising between the parties are to be mediated before court proceedings are commenced, the Act may still apply if Ontario law otherwise applies and the parties wish to avail themselves to the mediation process, subject to certain exceptions.
The Act is beneficial to businesspeople in that it allows for the advantages of mediation as a method of dispute resolution as opposed to litigation (such as speed, lower legal costs, risk avoidance, confidentiality) with the certainty allowed by a uniform set of rules governing the mediation process and the assured enforcement of mediated settlements by the Courts.
Here are some highlights of this brief (and hitherto "unknown") Act:
The Act applies to the "mediation" of a "commercial dispute" where the mediation commences on or after October 25, 2010 (s. 2(1)).
A "mediation" is defined as a collaborative process in which the parties to a commercial dispute agree to request a neutral person, referred to as a mediator, to assist them in their attempt to reach a settlement in their dispute, and the mediator does not have authority to impose a solution to the dispute on the parties. There are no surprises here.
What is surprising, but welcome, is the broad definition of "commercial dispute": "A dispute between parties relating to matters of a commercial nature, whether contractual or not, such as trade transactions for the supply or exchange of goods or services, distribution agreements, commercial representation or agency, factoring, leasing, construction of works, consulting, engineering, licensing, investment, financing, banking, insurance, exploitation agreements and concessions, joint ventures, other forms of industrial or business co-operation or the carriage of goods or passengers" (s. 3). This definition excludes disputes pertaining to family law and automobile statutory accident benefits disputes. As well, the Act has no application to collective (labour) agreements, computerized mediation, mediation pursuant to judicial or arbitration proceedings and mediations provided by Rules of Civil Procedure (thus, after the commencement of litigation) such as Mandatory Mediation (s. 2 (4)).
Interestingly, the parties can modify the provisions of the Act with some exceptions, or they can opt out of it altogether (s. 2(2)).
The Act provides a code with respect to the conduct of the mediations to which it applies. For instance, section 5 deals with the commencement and termination of a mediation, section 6 provides for the appointment and duties of a mediator, including the disclosure of any conflicts of interest, while section 7 sets out a code of conduct for the mediation itself.
The confidentiality of information is the subject of section 8, while its inadmissibility in arbitral, judicial or administrative proceedings is detailed in the following section.
Section 10 allows for the possibility of a mediation transforming into an arbitration (mediation-arbitration or "med-arb") on consent of the parties.
According to section 11 (1) "the parties may agree not to proceed with arbitral or judicial proceedings before the mediation is terminated" with an exception contained in the next subsection whereby
"an arbitrator or court may permit the proceedings to proceed and may make any order necessary if the arbitrator or court considers,
(a) that proceedings are necessary to preserve the rights of any party; or
(b) that proceedings are necessary in the interests of justice."
This section should be read in conjunction with section 11 of the Limitations Act, 1990. Accordingly, both the basic and ultimate limitation periods under the Limitations Act, 1990 may be suspended by agreement while a mediation under the Act is in progress. One should not assume, however, that limitation periods prescribed under any other legislation would be similarly suspended.
This section should be read in conjunction with section 11 of the Limitations Act, 1990. Accordingly, both the basic and ultimate limitation periods under the Limitations Act, 1990 may be suspended by agreement while a mediation under the Act is in progress. One should not assume, however, that limitation periods prescribed under any other legislation would be similarly suspended.
The finality of mediation settlement agreements and their enforcement by the Court are encoded in sections 12 and 13 respectively. In particular, section 13 (2) (b) allows for an alternative to moving on notice before a judge for judgment in the terms of the settlement by instead applying to the Registrar of the Superior Court of Justice for an order authorizing "the registration of the agreement with the court". Such an order would have the same force and effect as a judgment but, presumably, would have far less time and cost attached than a traditional judge's motion.
Mediators faced with unpaid accounts will rejoice when they read section 14, which would permit a mediator, in the right circumstances, to avail himself or herself to the enforcement provisions of section 13.
Finally, section 15 provides for the government's ability to pass regulations under the Act, although, to date, there are no such regulations.
All in all, the Act is a powerful and useful piece of legislation and one that should be welcomed by the legal and ADR communities, and by the public at large.
It's time to spread the word.
Thursday, 8 September 2011
HOW TO SABOTAGE A MEDIATION - An impractical guide for lawyers.
TO: Very Junior Associate
FROM: Senior Partner
RE: Oil v. Water – Mediation
There is a mediation scheduled for this case next week. I believe that it is either mandatory under the Rules of Civil Procedure or, in a moment of rare weakness, I reluctantly agreed to it. I would like you to attend at the mediation in my place. I’ll be golfing. Attached is the file comprised of ten banker’s boxes of documents for you to quickly review.
This case will never settle in a million years. I am absolutely certain. Therefore, I see no point in preparing for and participating in this mediation in earnest. In any event, we all know that, despite the obscene cost, the countless hours, the utter uncertainty of the outcome (not to mention collection difficulties and the prospect of appeals), a trial is the only sane method of resolving each and every civil dispute.
Accordingly, even if the opposing counsel and the mediator we have hired are prepared to undertake the serious work necessary to resolve this case, you must prevent this from happening at all costs. We simply need to get this mediation over with so that we can have our judicial pre-trial conference and then move on to trial. Fortunately, in case you should accept this assignment (Who’s kidding? It's not as if you have a choice), I am setting out below some suggestions on how to sabotage a mediation which were prepared by a colleague of mine who is a litigation lawyer and mediator. Perhaps he was being facetious but I can see no reason why we should not take his “advice” at face value.
1. Do not bother delivering a statement of issues or a mediation brief in accordance with the Rules or the mediator’s stated policy. However, if you feel that you must send something in advance, do not be selective about what you include in your material. Just bombard the mediator and the other side with lots of paper on the day before the mediation. Let them figure out for themselves what your position is and which documents support your case.
2. Send a lawyer to the mediation who does not have carriage of the file. Ideally, this lawyer should be someone who knows little or nothing about the case and has no prior working relationship with the client. Therefore the client won’t be able to look to the attending lawyer for guidance [Note: If you haven't guessed by now, this is the reason why I am sending you to this mediation].
3. When you arrive at the mediation inform the mediator of the precise conditions of your participation, such as refusing to engage in a joint session. Better yet, advise the mediator that he or she has one hour to settle the case or else you are walking out! For dramatic effect, tell the mediator that you have a plane to catch so he or she had better hurry up.
4. Do not come to the mediation with your client. If the other side gets upset about that then simply tell them that your client will be available by phone or that you have already obtained settlement instructions. Do not bother obtaining the other side’s consent or a required court order in advance.
5. If there is a joint session then kick up a fuss about essential matters like the seating arrangement, the fact that there may be more than one lawyer on the other side or that the opposing party’s spouse wishes to sit in.
6. If your client does attend along with you, do not let the client say a word. Certainly do not permit the mediator to address the client directly during caucus. After all, this is your case!
7. When it is your turn to speak during the joint session, viciously attack the opposing party’s character. Better yet, point out all of his or her lawyer’s procedural gaffes to date so as to embarrass the lawyer in front of the client.
8. Given that our client is a defendant debtor in a collection case, suddenly “cry poor” at the mediation, but offer no evidence to corroborate your claim of impecuniosity.
9. Should you be relying on case law to support your position, don't bother to include the cases in your brief or even bring them along to the mediation.
10. When you think you have heard enough from opposing counsel or the mediator, stand up and start packing up your belongings and tell everyone that you are going to leave, NOW! Show them that you really mean business. However, if the other side should try this tactic first, react by packing your belongings at an even quicker pace. The first one to walk out wins.
I am told that if you follow a few or more of these suggestions then the mediation is bound to fail despite the mediator's best efforts. Good luck and please don’t call me for help while I am on the golf course.
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