Negotiating when you have nothing to give

How can you negotiate well when you have already been committed to a limit, either by your previous actions or by someone else?

Consider this example: a general contractor works out an agreement with a landowner to build a custom home at a remote location in a vacation area during the next building season. He lines up tradespeople, and gets commitments from them on costs and timing for their work. He enters into a fixed price contract with the owner based on these commitments. When the building season starts, he starts the project and for a few weeks all goes well. Then several of the tradespeople come to him and say they want more money.

The contractor is stuck: the tradespeople are in great demand, and if he alienates them he risks them walking off the job. In this situation he will not be able to complete the project, therefore becoming subject to penalties; just as importantly, he will lose credibility and reputation and future business. If he lets the tradespeople walk away or get more money, he fears being taken advantage of in the future by them. He is not willing to go back to the owner at this point because he has already committed to the price as a condition of the contract, and any change will result in a financial penalty. If he simply tries to absorb the cost increases, he will not make any money on the project himself.

He decides to have an initial conversation with the tradespeople to investigate the reasons for the demand. He decides not to express his concerns at the outset; instead, he resolves to take on an attitude of being curious, and to investigate without worrying about who is right or wrong or what the contract says. What he discovers after some digging is that the increase in the price of motor vehicle fuel between the time he set up the contracts and the time building started has created a significant burden for the tradespeople, who all have to drive their large vehicles and supplies to the remote worksite every day. With this information, he sits down with them and generates a new question: is there a way we can deal with the fuel price problem without me paying you more money? The solution they come up with together is to work a four day week: each day will be longer, so the total work time and the schedule for the project is the same, but the tradespeople save one round trip every week, or about 20% of their fuel use, and several hours of travel time in total.

With this change they end up receiving the profit they anticipated because they have lowered their costs, and the contractor fulfills all his interests in completing the house on time and on budget. During the long days of summer the tradespeople are happy to have Fridays off, and light and temperature conditions are safe to work in.

What can we take from this kind of example? First, don’t assume a preset limit or your constraints will automatically prevent you from dealing effectively with a situation: you must understand what is driving the constraint or demand, not just what the constraint or demand is. Second, look for creative solutions first, solutions that do not require you to give up your constraints or compromise to meet them, but solutions that allow you to accomplish your goals as you work within the constraints. To do this, you need to enlist the creativity of the other negotiator and frame the situation as a joint problem to be solved. Third, if there are no ideal solutions, work to find other measures to mitigate the impact of the limit: for instance, a budget freeze may still allow you to make non-monetary changes that benefit staff. Finally, even if compromises are necessary, searching sincerely with the other party for solutions can reinforce your good intentions and maintain your working relationships. People who are dealt with this way will remember your efforts, even if you are not completely successful, and work with you again in the future.

Frank Handy :: About Author :: Email

22 April 2010 | News & Articles | No Comments

Internal Mediation Systems

Many organizations have considered trying to resolve disputes with mediation by using internal resources and staff rather than external fully independent mediators. Proponents argue that the cost will be lower, that mediators will know more about the organization’s operations and will therefore be able to assist disputants more easily (for instance with information about internal resources), that resolutions are more likely to be practical for the organization, that follow up systems will be easier to implement and monitor, and that increased access will allow more use of mediation, greater acceptance of mediation and better conflict management skills generally in the organization. Those concerned about this approach argue that without true independence mediations will not be as effective because disputants will be concerned about potential breaches of confidentiality, about the interests of the organization being more important than those of the disputants, and about suppressing widespread complaints with ad hoc responses.

The “ideal” mediation process has a number of characteristics: it is party-centered and voluntary for the parties in both deciding to attend and whether to settle, the mediator is fully independent and impartial, the parties have sufficient information to make good decisions about resolution, and the process is confidential and without prejudice for the participants. In designing any mediation system, choices must be made that will affect the “ideal” mediation process: in designing internal mediation systems, designers must strive to maintain as many of the ideal characteristics as they can and mitigate the concerns to the extent possible.

People looking to create a mediation system should consider design issues from three perspectives: impact on participants, mediator, and outcome. For participants: will they feel the process is effective in resolving the dispute, respecting their privacy, and in limiting the risk of causing greater damage to their relationships and legal position? For the mediator: will the process allow the mediator to work effectively, act in an impartial manner, and not be in effect an interested party acting on behalf of another entity? In regard to the outcome: will the final decision be that of the parties, and can they reach it free of inappropriate pressure from the process or others?

For an organization considering an internal mediation process, assuming the benefits are accurately stated, maximizing the “ideal” characteristics can be achieved in the following ways.

First, clear policies should be drafted that set out what the process is, what disputes it will cover, what limitations it may have in terms of outcomes (e.g., any outcome that requires an operational change will be subject to management approval), what protections it will include for participants and the mediator, and how records (if any beyond those legally required) will be kept and who will have access to them. Communication and education about the system should address the concerns of potential participants and the organization must show itself to be committed to the principles of the process.

Second, policies and design should address the major concerns of impartiality and confidentiality explicitly. For maximized impartiality, confidentiality, and self-determination, for instance, a pool of internal mediators can be established from various departments, and a rule instituted that the disputants may choose any mediator so long as he or she is not in the same department as any of the disputants.

Third, confidentiality should be assured by having participants explicitly sign a confidentiality agreement, and by having the limits of confidentiality explained. Within an organization, confidentiality may have different limits than in say the litigation context. For instance, behavior that is contrary to organizational policy, if disclosed during the mediation, may be subject to discipline or other sanctions and the mediator may be under an obligation to report it. For the parties, the choice to disclose information can therefore be made consciously with full knowledge of the risks: this approach preserves their autonomy, and allows the mediator to fulfill a neutral role within the limits of the organization’s rules.

Fourth, the parties and mediator must understand the limits of their respective authority and roles in the process. As examples, parties may not have the power to implement changes in their workplace without managerial action; personnel records may require some notation about steps that people have committed to implement so that managers will be able to support the changes and any time frames that have been established can be respected; reports may have to be made or records kept for statistical or management or supervisory purposes in the event a participant changes positions or a new manager becomes responsible for the affected staff. Any and all of these terms may be acceptable: the significant point is to make sure all terms and expectations are known as parties enter the process, so that the credibility and utility of the process will be maximized.

Finally, of course, design is only the beginning; use of the process must be monitored, its effectiveness assessed and improvements implemented to make it attractive and effective as a way to resolve disputes at minimum cost to an organization.

Frank Handy :: About Author :: Email

22 April 2010 | News & Articles | No Comments

MANAGING ORGANIZATIONAL CONFLICTS WITH ADR SYSTEMS

Public and private entities worldwide are increasingly using conflict management and dispute resolution procedures as a standard way of handling a wide variety of costly and disruptive conflicts, from legal or quasi-legal cases to workplace struggles to simple product and service complaints. Practical guidelines for designing and redesigning dispute resolution systems are increasingly necessary if organizations are to adapt effectively.
Broadly framed, the purpose of ADR system design is to develop effective processes to prevent, manage, and resolve claims, conflicts, and disputes. The challenging part in any system design is to determine what will be ‘effective’ in any given situation. Much of what makes a system effective is its ability to satisfy the goals of the stakeholders who are using, administering and affected by the system. One of the key benefits in ADR (Alternative Dispute Resolution) system design is the ability to find effective ways to prevent disputes and to minimize the severity and cost of the disputes that still occur.

One of the great dangers, particularly in the private sector, is that dispute resolution processes will be developed that reflect the mandate of the implementing organization but that ignore or minimize core goals/concerns of users and other stakeholders. This would be less of a concern if not for the fact that many private sector organizations can effectively impose their system, so they are not required to seek broad input. Modifying dispute systems without proper design processes, however, can create significant costs, tension, and pushback from stakeholders affected by the systems in question, and limit the usefulness of the system ultimately implemented. Customers using such systems are already in a conflict of some kind, and they become further frustrated with the organization in charge if they feel the system is biased against them. The cost of dealing with dissatisfied customers in an adversarial setting is high on both sides, with one of the primary costs to the organization being the lost time and stress.

ADR Systems come in various forms, each with its own challenges, including:
• Intra-Organizational Systems that apply to stakeholders within a single organization, and over which that organization has full control, such as an internal workplace grievance procedure at a single company.
• Extra-Organizational Systems that apply to stakeholders external to a single organization, but over which that single organization has full control, such as many governmental systems like workers compensation claims procedures.
• Inter-Organizational Systems apply to two or more organizations, with no one organization having unilateral control. Examples include nation-to-nation treaties like NAFTA, or inter-corporate agreements like the CPR Banking Industry DR protocols.
• Trans-Organizational Systems are used by two or more organizations and apply not only to those organizations but to other external stakeholders as well, such as the IDAC system administered by ADR Chambers (e.g. all signatory companies handle client complaints through a single dispute resolution system).

Organizations around the world, both governmental and private sector, are actively incorporating alternative dispute resolution (ADR) processes like mediation, negotiation, coaching, arbitration etc. into their methods for handling claims, conflicts and disputes (Ury et al. 1988; Wildau et al. 1993; Moore 1994; Costantino and Merchant 1996; Stitt 1998; Rowe 1997; SPIDR 2000; Bingham and Pitts 2002; Bertschler 2004; Katz Jameson and Johnson 2004; Bingham et al. 2009).

Having worked on a broad range of system design projects (from legal, to workplace, to contractual issues, and both public and private sector), the Stitt Feld Handy Group has a wealth of experience on which to draw in helping guide organizations through the system design process. There are 5 broad phases of system design, which vary in complexity and importance from one project to another, but which should be part of any system design project. The five phases, which are described in more detail below, include:
• Phase I: Clarify Mandate
• Phase II: Diagnosis
• Phase III: Design
• Phase IV: Implementation
• Phase V: Evaluation, Monitoring and Improvement

This classification is task-based, and in actuality there may be loopbacks or overlaps between the phases. It is not unusual, for example, to be laying the groundwork for Implementation (by lining up possible monitoring processes and personnel) even before the Design is fully approved. An experienced system design professional can help identify what tasks are most appropriate to the system design project in question - which stakeholders to consult, what questions to ask, what design options to consider and why, etc.

In a world of expanding ADR processes, the future of such ADR system design projects involves organizations increasingly a) borrowing from other successful systems to put such processes in place; and b) in ADR mature organizations, refining the systems already in place by ongoing improvement after monitoring and evaluation. The importance of these changes in saving money and generating greater stakeholder satisfaction should not be underestimated. In one case, for example, the implementation of mediation into a grievance procedure saved millions of dollars in system costs by significantly reducing the number grievance arbitrations and related lost time from work. The earlier cases can be resolved, generally the less entrenched parties become in their views, and the more likely that relationships can be salvaged, which is a key factor in avoiding poisoned workplaces.

Flexibility in the system allows it to adjust to the range of conflicts faced. In another corporate example that SFHG worked on, the use of mediation and other interest-based processes was tailored to the company’s circumstances by using HR staff as mediators (to save costs) but using HR staff from a different “neutral” location (to increase the appearance of neutrality and fairness), with the option for using external mediators in certain high sensitivity cases such as sexual harassment (when the need for neutrality was highest and justified the additional cost). Understanding the underlying concerns of the stakeholders helps focus efforts on optimal strategies. In a third project, our consultation with the client revealed that arbitration decisions were both expensive and ultimately hard to enforce. The losing party would return to the workplace and flaunt the decision. Brainstorming ideas with the key stakeholders led to the design of a peer review process that was less costly, incorporated greater knowledge of the context, and had the added benefit of a built in enforcement mechanism (peer pressure when back at work).

With the growing use of ADR processes in a variety of sectors, public and private, comes the need for practical guidance on effective dispute resolution system design. While every system design project is different, a coherent model to approach the design process provides helpful guidance to administrators at organizations contemplating system changes. There is clearly value to be had in reducing the number, duration and severity of conflicts. The question is how to secure that value without creating further costs and challenges, and an experienced ADR system designer can help answer that question.

Feel free to contact me at paul@adr.ca if you have any questions about ADR system design.

Paul Godin :: About Author :: Email

15 April 2010 | News & Articles | No Comments

Understanding What Makes Conversations Difficult

The key to doing better in our challenging conversations is to begin with an understanding of what makes them challenging in the first place. Once we understand the cause, it is easier to plan a response that is likely to succeed. Remember also that with challenging situations, they are by nature, well, challenging. As a result, we cannot expect a magic bullet response that will make these conversations ‘easy’. The realistic goal is to make them easier than they would otherwise be, and to make them more productive than they would otherwise be. To achieve that goal, we need to understand the key contributions to our difficulty with such conversations.

In their book, Difficult Conversations, Stone et al. suggest that difficult conversations have their roots in three sources - the What Happened conversation, the Feelings Conversation, and the Identity Conversation. The What Happened conversation creates tension because people disagree on factual issues. Their stories differ, or appear to differ. The Feelings conversation involves tensions caused by strong emotions. Many people are uncomfortable dealing with strong emotions, either their own emotions, those of others, or both. The Identity conversation involves difficulties arising when people have their pride and sense of self challenged (like in a performance review). Most people get upset and/or defensive when their sense of self is challenged, directly or indirectly. When these tensions erupt, conversations are far more challenging for all concerned.

To those categories, my surveys of about a thousand students over the years have identified three other general sources of difficulty in conversations - Past History, Conflicting Goals, and Challenging Communication Processes.

When people have a Negative Past History (personally or organizationally), it creates a negative filter through which any current conversation is seen, and that makes productive conversation much harder. People cannot listen to the other person’s story when they have already written it themselves. A union-management discussion does not take place as an empty slate, in which each person is heard entirely on the merits. In many labour settings, people are wearing glasses with lenses tinted by 20 or more years of perceived antagonism. Everything said and done is seen through those lenses. There is often a sense of prejudgment in the air. Since people don’t feel it is fair to be prejudged, this often provokes further identity and emotional reactions.

When people perceive the other party to have Conflicting goals or to be a barrier to achieving their goals, the competitive element of conversations is ratcheted up significantly, and the other side may be seen as the enemy. As human beings we often assume there will be opposition to our goals from the very beginning, and we then treat people as enemies to our goals. For example, you go to a complaints desk expecting them to defend the company line and block your request, so you take an aggressive tone (leading to a defensive identity reaction on their side), or you take an extreme position and lock in, or you withhold information from them which makes you look untrustworthy. When competition is our only focus, we may lose the opportunity for a cooperative response, and receive mirror-image competitive responses instead, making it a fight for both sides.

Finally, if there are Communication Process Challenges, productive conversation can be very hard to achieve even with good intentions. A phone conversation is more challenging for many of us than a face-to-face dialogue simply because we are lacking so many visual signals. Communicating in writing leads to serious interpretation issues. Put a conversation in front of an audience and it is not the same conversation anymore. A rushed conversation is rarely as effective as a planned one. As an example, one friend of mine, who is bright and interesting, is a close-talking person, and I have noticed that even people who have just met her quickly begin avoiding her because her method of communication puts them off. It takes a great deal of patience to stay in the conversation and look past its form.

In reality, all of the six challenges are potentially linked, as each one can generate the others. When a conversation is rushed (Process), it may generate significant frustration (Feelings) and if that pressure appears to be preventing you from reaching your goal (Conflicting Goals), you may become angry (Feelings) or feel like you will lose face (Identity). If an old adversary (Past History) confronts you with a raised voice in a public place (Process) with a disagreement about past events (What Happened), you might become defensive/fearful/angry (Emotions) because your sense of self is being threatened (Identity).

Understanding the cause of the difficulties in conversations helps us deal with them and still have productive meaningful conversations. Once we understand the cause of the difficulty, we can choose the appropriate response to use.

Several tools are good initial responses to try (a conversational first aid kit as it were), because they are low risk approaches with a high potential to improve the challenging behaviour. These include: a) asking good sincere open-ended questions (and listening sincerely to the response); b) not reacting negatively oneself; and c) taking a break even for a few minutes to calm down and plan your response (do this analysis). Even these low risk tools however, are dependent on how they are communicated. If someone is upset and you brush them off saying “I can’t talk now.” don’t be surprised when they get more upset. Contrast that with saying, in a sincere tone:

“All right, I can see this issue has got you very upset. I do want to see if we can work through this together, and I would really appreciate it if you could give me just five minutes to lay this stuff down, and gather my thoughts because I want to devote proper attention to this with you. I just need to clear my head of this other stuff first if you don’t mind.”

Again, there are no magic bullets, so we must ask:

1. What is the difficulty?

2. Why is it happening?

3. How might I respond effectively, if that is the root cause? And finally;

4. Try the response that is most likely to help the conversation, and least likely to do further harm.

Remembering these simple steps will help make any conversation more productive and less stressful for all involved. Every conversation is different, and what works for one person may not work for another. What works at work may not work at home. If we can avoid leaping to negative assumptions about the other person and their behaviour, our ability to choose responses that might actually work is greatly improved. And if your first attempt to improve a conversation fails, don’t give up, learn from the response to what you tried, and try something else.

Paul Godin :: About Author :: Email

15 April 2010 | News & Articles | No Comments

NEGOTIATING FUNDING: USING FACTS TO PERSUADE

First Published in the CBA Aboriginal Law Section Newsletter, January 2010

Aboriginal organizations seeking funding from third party sources can take a page from the negotiator’s book to get better results. Many aboriginal groups negotiate funding arrangements with a variety of third party sources (“Funders”) such as the federal and provincial governments, companies negotiating impact benefit agreements and other interested organizations. Funding arrangements relate to all manner of projects from resource development to education and capacity building, to social programs and more. Over the years, we have consulted with and trained several organizations on such funding negotiations, seeing both the Funder and the Applicant sides.

One key area in which organizations seeking funding can make major improvements to their ability to secure funds, is on the use of factual support (legitimacy) in proposals. While not a negotiation in the traditional sense, the process of applying for and securing funding is still a negotiation, and you need to persuade the Funder to commit their funds.

One of the most powerful tools to persuade the other side in a negotiation is the use of legitimacy (objective criteria, independent third party standards of fairness, benchmarks, comparables). People often put forward their subjective opinions or simply put positions out with no justification, a characteristic of many funding proposals that I have reviewed. Legitimacy can be thought of as the factual proof or evidence as to why a given proposal is correct or fair.

Many funding proposals make requests for very large sums while providing the Funder with only a minimal breakdown for the use of the funds, and even less support for the need for those funds. As one example, a proposal for a social welfare/medical project listed approximately $50,000 for “Office Equipment” as one line item in a proposal totaling almost a million dollars. Another line item relating to staff was “Travel Expenses” listed for approximately $100,000. No further explanation was supplied.

The Funder reviewing such a request has several options. One is to reject it as being too vague to justify such high amounts. The second is to accept the proposal and hope that the amounts are justified and will be well spent. The third is to go back to the Applicant and ask for supporting information. In a world of tight timelines, tighter resources and overworked staff, not many funding organizations can spend the time to make an Applicant do its homework, which leads them back to the first two choices. If someone else did a better job of persuasion, they will get the funding.

If you want to ensure the path to funding is as smooth as possible, make it easy for the Funder to say ‘yes’ to your proposal as opposed to others. Think like a funding agency. Provide the supporting documentation to answer a few key questions that will always be in the Funder’s mind:

1. Why is the project worth funding? What is its purpose?

From the very beginning of your proposal, state the project’s purpose in a way that clarifies your goal and communicates why that goal is worth achieving. Your purpose statement is your hook. If the Funder is not convinced your goal is a worthwhile one, they will have little interest in funding it. Did the first sentence of this article make you read further. If so, you were hooked.

2. What specifically will the money be used for?

If you are asking for more than a few thousand dollars, a diligent Funder will want some detail on what their money will buy. Provide a line item breakdown of all proposed spending with sufficient detail that the Funder can see where the money is going. Saying “Office Equipment – $50,000” is too broad.

Example:
Office Equipment
Computers (6 laptops x $1500 each)1 $6000
(4 desktops x $1000 each) $4000
Desks (4 desk sets x $500 each) $2000
Etc.

3. For each line item, why is that item necessary?

Prove to the Funder how that particular good or service is necessary to the underlying goals. Give them a valid reason for that part of the request. Why are computers needed? Why 6 instead to 2? If there is an obvious concern, like “Why do you need laptops instead of cheaper desktops?” give the Funder a rational answer.

Example:
Computers: Six laptops are required, one for each new field agent being hired (as recommended in the pilot project report). Although more expensive than a desktop unit, the nature of their work is that field agents will be spending 40-60% of their time visiting the remote communities in their field area (6-8 communities each). Based on the pilot project results in the attached report (see page 27), field agents’ ability to compile and work with the data gathered will be severely compromised without laptops. Four desktop units are required, one for each regional sub-office in ….

4. For each line item, why is that amount necessary and appropriate?

Don’t make the Funder take your word that the estimated amount is correct. Make their review easy and back it up with corroborating information in an objective form they can verify.

Example:
Attach copies of quotations for the computers from a computer supplier (ideally attach 3 competing bids); attach a photocopy of the catalogue page for the item, etc. For the travel, produce quotes from a travel company to support the cost per trip, and records of the previous year’s travel for a typical field agent to support the number of trips.

5. Are you the person/organization I can trust to manage and spend my money wisely?

Demonstrate the trustworthiness of your organization. Show the Funder that your organization is competent enough to perform the tasks required to meet the goals in a cost effective way. One way to do so is to document the credibility of your staff. Another is to document successful past projects of a similar nature.

Example:
Attach resumes of your key staff, copies of reports on past projects, reviews from other funding agencies or third party agencies of your work.

By doing a good job on organizing and submitting the funding proposal and documentation, you will benefit in three major ways. One, your proposal will be far more convincing. Two, in gathering the documentation, you will gain a greater understanding of the strengths and weaknesses of your own proposal, and you will make it stronger. Three, by impressing the Funder with the caliber of your proposal, you have already taken a giant leap towards a ‘Yes’ under question number 5 above. You are proving your ability in a very concrete way by coming to the table with answers in hand.
While there are many skills in putting together a successful funding proposal, don’t forget the power of adding legitimacy to your request. No funder wants to spend money unless they know they will be getting value. Don’t try and sell them, show them.

Paul Godin, Stitt Feld Handy Group/ADR Chambers

Paul Godin :: About Author :: Email

9 February 2010 | News & Articles | No Comments

A mandate for training is a mandate for survival

Governments and businesses are under enormous pressure due to the financial challenges we are experiencing internationally.  A besieged mentality is all too common and many organisations are responding with drastic monetary and staffing cuts.  For many in Human Resources, they see their training budgets disappearing.  The question arises, as to how can we keep our competitive edge while not offering training and development opportunities to staff?  The answer is not complicated - we cannot.

I would argue that significant cuts in our training and development (T & D) budgets are a very short term and, in fact, short sighted reaction to the economic pressures we are facing.  In fact, I suggest that a mandate for training is a mandate for survival.

As we attempt to ride out this international economic crisis, we should be focusing more and more on human resource development.  How successful an organisation will be in surviving these times will depend on increasing efficiency.  That will depend on how successful an organisation is at making best use of its key resource, its employees.

Enhancing, not reducing, training and development opportunities for employees is the most significant contributor to efficiency and survival.  In order to achieve the competitive edge, organisations, and this includes both businesses and governments, must commit to enhancing the quality of their employees by investing in effective and relevant training programs.  As the Chief Executive Officer of the Cave Hill School of Business, Dr. Jeannine Comma, stated, “The successful companies are the ones that recognise that an organisation is only as great as its people and the only true source of competitive advantage is in its human capital”.

If your T & D department budget has been cut significantly, and more significantly than other departments, chances are your organisation hasn’t fully recognised the value of training.  Your work as manager of Human Resources is not done until the organisation sees training and development as an investment rather than as a cost, and recognises that its health, durability, and success depends as much or more on well developed staff than anything else.

But if your organisation needs to reduce costs, arguments should be made as to why the T & D budget should be maintained even in these challenging times.  The arguments will generally focus on the need for your best resource, that is your staff, to be efficient, effective and willing and able to deal with change.  There are numerous sound arguments for maintaining a healthy T & D budget, some of which are as follows.

First, with cutbacks and uncertainty, morale is low.  Unlike cosmetic spending that can been seen as a waste, effective training spending indicates commitment to those who remain, and can raise morale.  Staff members feel more confident that your organisation will weather a crisis if it demonstrates a longer-term perspective by maintaining training and development opportunities that will help people do their work better.  Training shows that the organisation thinks there is a future, and that staff will be part of it.

Second, an effective organisation may well use downtime or shifts in resources to prepare for recovery and the longer term.  Training is the way to develop people who already have valuable information and background experience in the organisation and help them into new roles, or give them the next generation of skills they will need to help the organization recover and flourish.  The cost of training or retraining existing staff is far less than the cost of recruiting and training people who have no experience in your organisation, and you will be a step ahead of the competition and able to take advantage of opportunities more quickly than others.

Third, today’s successful organisations must reflect a commitment to learning if they are to retain people who remain mobile even in bad times, or those who, because of uncertainty, may be looking for other opportunities that appear more secure.  Paying lip service to training instead of really committing to training damages the credibility of an organisation in other areas as well.  “Stay loyal to us while we cut our commitments to you” is not a recipe for success.  In addition to damaging loyalty, such behavior adds cynicism to the workplace atmosphere.

Finally, do not forget that there are ways now to deliver learning that are less costly than in the past.  In-house training departments can develop intranet or Internet tools for delivery with fewer travel or logistical concerns.  External consultants for periodic programs can be less expensive than maintaining a full learning department but still deliver high quality for specific skill topics.  Training organisations understand the pressures and challenges that exist today; they are often prepared to make special arrangements to accommodate cost concerns, such as adjusting the length of programs, the number of instructors, the timing of payments, and so forth.

Remember that embracing the concept of continual training and development is an investment in the future of your organisation and contribution on the road to recovery.  I wish you the very best in your T & D budget negotiations!

Peter Dreyer
Senior Associate
Stitt Feld Handy Group / ADR Chambers

Peter Dreyer :: About Author :: Email

21 August 2009 | News & Articles | No Comments

Keeping your head when all about you are losing theirs

HR Leader Article by Frank Handy
Our learning & development budget has been cut significantly as a result of organization-wide cost-reduction initiatives. How can we still train staff and maintain our L&D line despite this?

If your department has been cut significantly, and more significantly than other departments, chances are your organization hasn’t fully recognized the value of training.  Your work as manager of L&D is not done until the organization sees L&D as an investment rather than as a cost, and recognizes that its health, durability, and success depends as much or more on well developed staff than anything else.

Your arguments to hold on to your L&D budget, to reduce the scope of cuts, or to get funding for specific programs in tough times can focus on ROI, and a web search will give you many sources of information about the metrics for these calculations. Helping an organization realize this point, however, is a long term project, something to work at over time no matter what the economic climate.

But if your organization needs to cut, there are some reasons why L&D should be maintained even in hard times.

First, with cutbacks and uncertainty, morale is low. Unlike cosmetic spending that can been seen as a waste, training spending indicates commitment to those who remain, and can raise morale.  Staff members feel more confident that your organization will weather a crisis if it demonstrates a longer-term perspective by keeping up training that will help people do their work better.  Training shows that the organization thinks there is a future, and that staff will be part of it.

Second, an effective organization will be using downtime or shifts in resources to prepare for recovery and the longer term. Training is the way to develop people who already have valuable information and background experience in the organization and help them into new roles, or give them the next generation of skills they will need to help the organization recover and flourish.  The cost of training or retraining existing staff is far less than the cost of recruiting and training people who have no experience in your organization, and you will be a step ahead of the competition and able to take advantage of opportunities more quickly than others.

Third, today’s successful organizations must reflect a commitment to learning if they are to retain people who remain mobile even in bad times, or those who because of uncertainty may be looking for other opportunities that appear more secure.  Paying lip service to training instead of really committing to training damages the credibility of an organization in other areas as well. “Stay loyal to us while we cut our commitments to you” is not a recipe for success. In addition to damaging loyalty, such behavior adds cynicism to the workplace atmosphere.

Finally, don’t forget that there are ways to deliver learning now that are less costly than in the past.  In house training departments can develop intranet or Internet tools for delivery with fewer travel or logistical concerns. External consultants for periodic programs can be less expensive than maintaining a full learning department but still deliver high quality for specific skill topics.  And training organizations understand the pressures and challenges that exist today; they are often prepared to make special arrangements to accommodate cost concerns, such as adjusting the length of programs, the number of instructors, the timing of payments, and so forth.

So, remember that investing in training is an investment in the future and contribution on the road to recovery. Good luck in your negotiations!

Frank Handy :: About Author :: Email

6 March 2009 | News & Articles | No Comments

What’s new in ADR?

November 2008

By Paul Godin
ADR Chambers/Stitt Feld Handy Group

I: ARBITRATION

The Supreme Court of Canada will soon decide the leave to appeal application in Yugraneft v. Rexx Management, a case with international consequences for arbitration law. The central issue relates to the enforceability of international arbitration awards in Canada. At issue is the applicability of local (provincial) statutes of limitation on the commencement of proceedings to enforce arbitration awards made internationally.

Canada, along with 143 other countries, is a signatory to the New York Convention (United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards), which has successfully governed many arbitrations internationally for 50 years. The New York Convention has provided reliability and certainty of enforcement of awards across a wide variety of countries. Enforceability, subject to certain exceptions carved out, provides the confidence for commercial parties to contract in foreign jurisdictions in which the laws and courts may be less than reliable.

Other arbitral provisions such as the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL) may also be affected by this decision. Canada has adopted the model law, wholly or partially, in all provinces and territories, as in Ontario with the International Commercial Arbitration Act.

In August of 2008 the Alberta Court of Appeal in Yugraneft ruled that if proceedings to enforce a foreign arbitral award are not commenced within Alberta’s two year statute of limitations, the proceeding will be statute-barred. This decision, if upheld at the Supreme Court, could have a large impact on enforcement of arbitral awards across Canada and internationally, as it arguably departs from the New York Convention which does not list delayed enforcement proceedings as a barrier to enforcement. If Yugraneft becomes the law in Canada, arbitration will be less attractive to international companies with a tie to Canada.

II: NEGOTIATION

A forthcoming article in the Journal of Personality Research (Elfenbein, Curhan, Baccaro, Eisenkraft, & Shirako) suggests that variation in personality traits can account for almost half of the difference in results from one negotiator to the next. Amongst other things, the belief that you can learn to negotiate better tends to be associated with improved results relative to the belief that negotiation skill is innate. Overall, negotiators who took initiative and played an active role (by asking questions, proposing options, reacting to offers etc.) did better. Another tendency is that people pleasers tend to do worse in the absolute sense than “pro-self” negotiators, even in collaborative contexts. Highly intelligent negotiators tended to be better able to “create value”, but were actually less likely to “claim value.” Another trend was for “thin-skinned negotiators (sensitive about saving face) to walk away from deals more readily than others even when deals were objectively reachable. One interesting point is that “fixed traits” like age, gender and race were less likely to have a significant impact on results than the other traits mentioned above.

II: MEDIATION

A) INTERNATIONAL

A very interesting article entitled “Let’s Not Make a Deal: An Empirical Study of Decision-Making in Unsuccessful Settlement Negotiations” appeared in the September 2008 edition of the Journal of Empirical Legal Studies. Essentially, the study compared the value of offers that were rejected in settlement discussions and the ultimate dollar value of damages awards in the same cases. The statistics are telling. When facing a choice between accepting a settlement offer and going to trial to get a result there, plaintiffs who chose to go to trial ended up worse off at trial in 62% of the cases. Similarly defendants who refused the offer and went to trial ended up worse off in 24% of the cases.

While it sounds like Defendant counsel and their clients are much better decision makers than Plaintiff counsel and their clients, another statistic should give the defence pause as well. The average cost of the Plaintiff-side mistake (difference between the offer refused and the amount awarded) was $43,100. Although defendants were wrong less often, the cost of their mistake was much bigger on average, about 1.1 million dollars, almost 30 times greater.

The study looked at a wide variety of contributing and mitigating factors and makes a good read if you ever want to have a rational discussion with parties about the decision to settle or push forward to trial.

B) Ontario

In Ontario, the Civil Rules Committee is contemplating a change to Rules 24.1 (Mandatory Mediation) and 77 (Case Management). Submissions have been sought from the Ontario Bar Association and other stakeholders. There is no way that any rules design could handle the complexity of civil litigation in Ontario perfectly the first time round, so the inevitable adjustment took place in Toronto (where challenges were more evident than in Ottawa) with the introduction of the Practice Direction from Justice Winkler. Once again, the wheel has turned, and the Rules Committee is trying to capture the best of both regimes. There may also be a push to move mandatory mediation province wide but that remains to be seen and a working group to study the issue may be forthcoming shortly. For more details about the proposed Rule 24.1 changes, read on.

The comments on the proposed changes to Rules 24 and 77 set out below are not intended to suggest that the first two regimes were in any way “bad”, but are merely intended as suggestions on how to further improve those systems, based on the practical experiences of the last few years and on review of studies on mandatory mediation around the world, including the evaluation of the Ontario Mandatory Mediation Program Pilot Project.

Definitions

For clarity, I have tried to use the following phrases where possible:

Original Rule(s) – means the first version of Rule 24.1 that was introduced in Ontario, effective January 4, 1999.

Practice Direction- means the Practice Direction for Backlog Reduction that has governed case management and mandatory mediation the last few years, effective since December 31, 2004.

New Rule(s)- means the newly proposed draft wording for Rules 24.1 or 77

Mediation Studies

On the front end, I should state my overall view that the Practice Direction (which was understandably designed to give more flexibility back to counsel and to ease the burden on Court time for Masters and judges) inadvertently lost some of the proven benefits of early mandatory mediation (statistically documented in the evaluation of the Ontario Pilot Project). My personal bias is a desire to improve the system to maximize the benefits to the parties, while not placing undue burdens on the Court’s resources, and maintaining flexibility for counsel to the extent possible (in that order).

Studies around the world and particularly that of the Ontario Pilot Project clearly demonstrate the success and benefits of early mediation. In Toronto and Ottawa, on average, more than 40% settled at mediation or within 7 days thereof. Another 20% significantly narrowed the issues, something I have witnessed many times even when parties don’t settle. If my own practice is any measure, that number would be even better these days if the study was replicated because counsel use mediation better and are more educated on the choice of mediator.
The comparison to the control group in the Pilot Project showed that there was a significant increase in early settlement in the Rule 24.1 stream at the 6 month mark across almost all types of civil case. Three times as many Rule 24.1 negligence cases had settled relative to regular negligence cases within 6 months of start time. Twice as many medical malpractice and commercial cases in the mediation stream had settled by 6 months. Other than Trusts and Wrongful Dismissal cases, all other areas tracked had at least a 25-30% improvement in settlement results at 6 months, decreasing not only costs to parties, but demands on Court time.
The Pilot Project study clearly showed that from the litigants’ perspective (and also counsel), with mandatory early mediation there was:
1. a clear increase in early settlements
2. a clear savings on overall cost of litigation; and
3. a clear trend to earlier settlement
Those clear benefits to the parties of mandatory early mediation should not be lost in order to improve flexibility for counsel, when we can improve the system design to increase that flexibility significantly, without losing the clear benefits of a push for early mediation.

Arguably, lawyers will mediate early when appropriate even without strict timelines, but several British studies on mediation suggest otherwise. Even when parties were actively referred to mediation by the Court (but with a right to reject the referral and opt out), more than 80% opted out. What is disturbing about this statistic is that we know in Ontario that about half of mandatory mediations settled within 90 days of the filing of the first defence or close to it. Statistically, that means about half of the cases that opted out would likely have settled at mediation. Parties likely spent more time, money and stress on those files as a result, even if they settled before trial. Arguing that they did better as a result of waiting doesn’t really work either, because for every dollar more that one side ends up getting, the other is paying a dollar more.

Ultimately, there were a few key challenges related to mediations under the Original Rules (discussed below) that could have been resolved without losing the benefits of early mediation and while maximizing the effectiveness of dispute resolution efforts, so that cases are mediated as early as is possible and appropriate to the case.

The 24.1 Issues

On the mediation side, there were a number of issues that cropped up again and again under the Original Rules, using up Court time and frustrating parties, including:

1) Concerns about tight timelines;
2) Changing mediators;
3) Inadequate Time to Mediate Once Appointed;
4) Identifying Who Should Attend;
5) Dealing with Non-Compliant Parties (particularly payment of fees); and
6) Breaches of Confidentiality.

Concerns about Tight Timelines

Counsel often felt hemmed in by unreasonably tight timelines that did not reflect the reality of their cases or their practice. The 90 day timeline to mediate with a single extension, on consent, of 60 days was considered too tight by many. Another complaint heard was that some Masters dealt with requests for extensions quite rigidly in an effort to enforce the policy behind the rule encouraging early mediation.

I propose a three tiered way to balance the desire for flexibility with the desire for cost and time-effective litigation.

Tier One is the choice of a default baseline time period for the mediation to take place that balances a push for early mediation with practicality.

Tier Two is a simple and reasonable method of extending that time where necessary that does not waste the Court or parties’ time and does not unreasonably extend the duration of the action (by capping this “easy” extension to avoid creating an easy out from early mediation).

Tier Three is a quick and easy process for parties to get court approval for further extensions when necessary in the circumstances of the case.

Under this tiered system, there would be a strong push for early mediation and in those few cases where the default timeline is too tight, there are low cost methods to extend the time as needed without having to bring a full blown motion, and without giving a blank cheque to counsel to write their own timeline with no supervision to protect litigants’ interests in fast cost-effective resolution.

Tier One- Initial Time to Mediate

The New Rule 24.1.09(1) allows 180 days after the filing of the first defence for a mediation to take place. This change is a step in the right direction, as it provides more flexibility than the Original Rule (90 days) but does not throw it out to 2 years like the Practice Direction.

Tier Two- Right to Extend Time

On can incorporate scheduling flexibility by giving parties the right (either unilaterally or on consent) to a reasonable extension of time to choose a mediator or to mediate. One challenge with making the extension conditional on consent is in cases where all parties are not represented. This created practical difficulties for all concerned under the Original Rule. One reason people needed more time was often to locate or bring in certain parties. Requiring the consent of all parties will be particularly challenging if the time starts running after the filing of the first defence instead of the close of pleadings. It also creates another procedural step of chasing the other side to get that consent (an extra cost for all concerned).

If I read New Subrule 24.1.09(3) correctly along with new (5), (6) (6.1) and(7.1), the New Rules would allow parties to extend the time on consent with no clear time limit at all, other than that the parties must file a notice about mediation “before setting the action down for trial”. Such an open-ended rule opens up an easy to use bottomless pit of time that may result in many counsel simply putting off mediation so they have one less task to worry about. In my view, it would be better to allow a reasonable and easy to use extension, but with a cap of 90-180 days, keeping their feet to the fire.

The Original Rules aimed at having documentary discovery prior to the mediation and many counsel were unable to get that exchange completed prior to those early mandatory mediations, one of the main reasons behind many failures to settle. I’m told anecdotally by Ottawa mediators that in Ottawa, the Bar adjusted quickly and learned to do more work on the front end of cases, which is a major reason why Ottawa had a higher settlement rate than Toronto’s large and disparate Bar during the Pilot Project. In my own experience, I certainly noticed that, by the end of the Original Rule regime, many Toronto litigation counsel were also adapting and doing more on the front end, so that concern may be lessened now.

One other objection that some counsel had was that oral discoveries were necessary in many cases to truly discuss settlement reasonably. Whether or not that is true, if we move to a model with 180 days plus an easy extension period with a reasonable cap, the vast majority of cases could be mediated at either end of oral discoveries (before if the benefit does not warrant the added cost, or after if it does). By adding a simple cost-effective way to get a Court extension for even more time, there should be no serious objection to the timing requirements of mediation in the New Rule.

I highly recommend having a simple easy to use extension process, with a reasonable cap of 90-180 days instead of an unlimited discretion.

Tier Three- Court Approval of Extension

In Ottawa, my understanding is that when a timeline concern arose on mediations, a simple phone conference call with Master Beaudoin was routinely used to amend the timing of mediations beyond what the rules initially called for- not too burdensome on counsel or on the Court. The Master was relatively flexible with parties in addressing such requests. To increase flexibility, could there not be simplified phone procedures and clear guidelines for how Masters should generally approach this common issue?

Changing Mediators

The second issue under the Original Rules arose occasionally when parties were late in picking a mediator. Counsel received the notice of assignment by the Court to a roster mediator they weren’t actively interested in using, triggering a request by them to change mediators. We as roster mediators were often the first to get this request when we tried to schedule a date with the parties. Anecdotally, tension and frustration arising from this issue was quite common.

Under the Original Rule, the parties had to get an order from the Court, allowing the replacement, which was a waste of time and effort on all fronts. In such cases, why not find a simpler change procedure. The timelines for a new mediator would be the same. From the system’s perspective, the Court doesn’t actively care if the parties use a particular mediator. The Court only wants to make sure the parties mediate in a timely manner. If that is the case, there is no good policy reason to force parties to use an Assigned Mediator if they want someone else. A number of studies around the world have shown that mediations with voluntarily selected mediators are somewhat more likely to settle than with assigned ones. There is no reason to oppose such a choice as long as the parties are still bound to the same timelines under the rules.

One possible objection from the Assigned Mediator is that they have lost their spot in the roster rotation and spent time and effort on the file.

To avoid even the possibility of such an objection to the change, the New Rule could allow change from an Assigned Mediator as a matter of right upon filing a notice of the change with consent by the parties (with a CC to the Assigned and the newly appointed mediator and to the Mediation Coordinator), whether the mediator consents or not. To minimize the effect of the consent change, the change notice should serve to put the Assigned Mediator back to the top of the roster list. The Rule could also include a stipulation that any reasonable cost of the Assigned Mediator should be paid jointly by the parties, if requested, but such costs are unlikely to be much if anything in such cases.

Inadequate Time to Mediate Once Appointed

New Subrule 24.1.09(7.1) gives parties 90 days to have the mediation after the appointment of an Assigned Mediator. Extending that timeline from 90 days to 120 days would also be wise, because under the Original Rule it was often a challenge to find an agreeable date in the 80+ days after assignment. As a result, the general lack of enthusiasm from parties about having an unfamiliar mediator assigned was aggravated when the first discussion with the assigned mediator was a struggle over dates. Both mediators and counsel, not to mention parties, are often heavily booked in the 3 months out from any given date. Thirty more days will not hurt the timeline for justice, but would significantly ease the date selection process, making it more likely mediations proceed without bad blood and without wasted administrative time trying to squeeze in a date in clogged calendars.

Application of the Rule- New Rules 24.1.09.1 and 24.1.04

Wrongful Dismissal and Simplified Rules Cases

In my view, mediation should be mandatory for wrongful dismissal and simplified rules actions. In the last two years, all such cases that I mediated have settled at mediation, except for two or three cases with either a party that did not attend or a particularly strong personality. The costs in issue relative to the costs of trial make these cases particularly amenable to mediation.

With respect to the timelines for such cases, the Original Rule gave more time to hold a mediation (150 days from close of pleadings) in Rule 76 and wrongful dismissal cases than in regular actions (only 90 days after first defence). If we are moving to 180 days for regular actions (which I think is wise), it might be simplest to put all cases, including the 24.1.09.1 cases through a single set of timelines and procedural rules. It would be less confusing for counsel, the court, and mediators.

General Application

The scope of application of New Rule 24.1 needs to be clarified. It is not clear from New Rule 24.1.04 if all cases (in Toronto for example), are going to be “assigned to mandatory mediation by the registrar” under the direction of the regional senior judge or only some cases. Is a further defining practice direction in each jurisdiction expected to clarify the scope of application of New Rule 24.1 in each jurisdiction?

In any case, the New Rule could have a clearer direction on which cases are or are not subject to Mandatory Mediation. This comment also applies to 24.1.09.1(3) that revokes 24.1.09.1 on July 1, 2009. Do the wrongful dismissal cases default to subrule 24.1.04 on that date or do they get removed from the scope of 24.1 entirely? It was not entirely clear from the draft New Rule. This should be clarified.

Overall, they should all be covered by mandatory mediation, with a single flexible but not overly lenient set of timelines and simpler court approval processes (as described above).

24.1.11 Who Should Attend

To reflect the practical realities of the insurance defence litigation world, the wording of New Rule 24.1.11 (1) and (1.1) should be adapted to remove the technical requirement for both the party AND the insurer making the decision to be present (which appears to be the letter of the rule under the current and New Rule wording). This rule can create large burdens when parties may be geographically distant and singularly uninvolved in the case. It also does not reflect current practice in the Insurance bar when the person with real authority is the insurer funding the defence and instructing counsel. As the rule currently stands, it can be used as by plaintiff counsel to pressure an insurer to bear unnecessary procedural costs (by forcing the party to be brought). As mediators, we may have to choose between ignoring the letter of an impractical rule or enforcing it and aggravating at least one party.

A better wording might be similar to proposed New Rule 77.08(2) which refers to “the parties, or a representative of the parties responsible for making decisions regarding the proceeding and instructing the lawyer”, or something in that vein. To prevent abuse, the clause could be limited to cases involving insurers.

Alternatively, one could instead simply change 24.1.11(1.1) by adding a sentence such as “Notwithstanding (1) above, where such an insurer is not contesting coverage of their insured party and the applicable limits of insurance in question are not likely to be exceeded by a settlement at the mediation, the insured party is not required to attend.”

Payment where Non-Compliance

Currently, if a party fails to attend a mediation and a certificate of non-compliance is issued by the mediator, the mediator is required by s. 5 of the Regulation to Rule 24.1 to charge the cancellation fee to the non-compliant party. As a result, the mediator arguably must refund the innocent party their half of the mediation fee and charge the whole mediation fee to the non-compliant party. The mediator must then invoice (and chase) the non-compliant party for those cancellation fees. This situation is not very fair to the mediators, who may end up not getting paid at all after preparing for and attending at a mediation.

The New Rule should make it clear that, in the event of a certificate of non-compliance being issued by the Mediator, the mediator need not refund their mediation fee to the innocent party. Otherwise, the burden of getting the full fee from the breaching party is now on the mediator. If the party was non-compliant because they never showed, the chance of the mediator getting paid anything is slim. In roster assignment cases in particular, this will be a significant risk. Chasing a $600 receivable for a service the party didn’t want in the first place is an unenviable task with almost no chance of enforcement currently.

Instead, the Rule should also be clear that the innocent party can apply to the Court to have its costs (and its half of the mediation fee) of the mediation paid by the non-compliant party. In terms of who should bear the risk of such default, the party who is already engaged in the lawsuit (and is seeking costs generally) is best situated to seek that mediation fee from the offender.

Consequence for Breach under 24.1.14

The New 24.1.14 should contain a clause stating that mediations are ‘confidential’, unless the parties otherwise agree (right now they are just “without prejudice” under the rule). Making them completely confidential without the right to contract out would limit the right of parties to disclose information to necessary people like relatives, financial advisors etc.

A related issue is that the Court currently lacks the power to enforce the without prejudice provision of subrule 24.1.14, a challenge made apparent by the Court of Appeal in Rogacki v. Belz, (67 O.R. (3d) 330). Somewhere in New Rule 24, the Court should be given powers to remedy breaches of 24.1 generally (similar to the specific powers under 24.1.13 for non-compliance certificates).

Transition to New Rules

For cases currently in the system when the change to the New Rule comes into effect, there needs to be clarity as to which version of the rule will apply.

New Rule 77 Proposed

The changes to Rule 77 are subtle, but could be significant. One change is that a mediation might be requested from the Court by a single party (as opposed to “the parties” on consent). This right to unilaterally move the process forward has been adopted by a number of other jurisdictions around the world, particularly when they do not want to mandate mediation in all cases, but want to make it easy to get if desired. How it fits in with Rule 24.1 remains to be seen.

Keep an eye out for the next update on What’s New in ADR!

Paul Godin :: About Author :: Email

2 December 2008 | News & Articles | No Comments

Adventures in moving

Having just moved from Toronto to Oregon, it was a very interesting series of negotiations to get us there in one piece. Some of the most intriguing negotiations involved the sale of our Toronto house and the purchase of our Eugene house, in part because of the contrast in styles of our two agents.

In Eugene, we really required an agent’s help for a number of reasons, being so unfamiliar with the Oregon procedures legally and practically, and to our agent’s credit, he and his team went above and beyond the call of duty in answering questions as varied as “how do we clarify lot line issues?” to “Who can we get cable from?”

Traditionally around many North American jurisdictions, a house purchase transaction involves almost no direct contact between buyer and seller, with the agents doing most if not all of the talking. In our purchase of the Eugene property, we were obliged to complete the purchase negotiations in stages while in a different country, which made it even harder to have any direct input. To the credit of our agent, Dave Koester, he encouraged us to deliver an “offer letter” with our offer, explaining the background of our offer and developing at least a paper relationship with the sellers. As corny as it may sound, I believe it helped. We got a nice letter back from the sellers with their counter-offer. When we replied with our response to the counter-offer, it was a response that could easily have been seen as harsh, in that we did not raise the dollar amount of our offer. By sending a further letter explaining our response, we were able to minimize the negative reaction and assumptions that might have resulted. Our explanation focused on an explanation of the many objective criteria that had led to our offer. It also identified our reluctance to leap upwards in price not as an attempt to lowball them, but as a consequence of our very real fears that the US housing market was going to continue going down, not up, and leave us with a much less valuable asset.

The result was ultimately a price that everyone was comfortable with, and I’m happy to say that we maintained a good relationship with the sellers despite having only one brief chance to see them face to face due to the circumstances of the purchase. When we moved in, we had a wonderful package of background material, manuals, recommendations and other things (even a listing of all the garden’s plants) waiting when we arrived in our new house, including a bottle of their favourite wine. And I can happily say that we are quite pleased with our new home ourselves.

Part of the reason for that satisfaction is the research we put into the available housing in Eugene before we ever bought (and even after we bought). Over the course of two months, we scanned the MLS regularly to get a sense of what was available and what we liked. Eventually, before going to Eugene to scout prospects on the ground, we did a concerted review of more than 30 “hot prospects”, comparing notes and creating a spreadsheet comparing all of the interests that we had in a house (things like a good view, a nice low maintenance garden, interesting character, a location in biking distance to the university, and various other desires). From that list we were able to quickly and logically narrow the list to 14 really hot prospects, which actually varied considerably in price and location, but all had the potential to make us happy.

Our first trip to Eugene, we visited every one of those houses and a few others suggested by our realtor. By the end of that trip we had a very concrete idea of what would satisfy us, and by making it concrete, we were able to flesh out our interests much more. My wife, for example, had been very reluctant to buy or even look at a hillside house. When we visited some, however, she was surprised to find how attracted she was by the gorgeous views. In exploring why she was reluctant to get a hillside house, it turned out there were two primary concerns. One was the risk of water intrusion (a very real risk in the rainy hills of Eugene and one that our agent echoed). Some of the houses had great views, but looked like they might get a lot of runoff hitting them. Her second concern was that the houses in the hills tended to be more than 4-5 km from the university and too high up to bike back to. That echoed one of my concerns in that I wanted to be close to a neighbourhood with shops and restaurants in easy reach for a Sunday stroll.

By clarifying our interests, we were able to end up with a house on the top of a hill in the center of town that had a great view of the Willamette Valley and the hills of Eugene, and that had no serious risk of water intrusion and (as verified by a home inspection) no history of water leakage, all within 2 km of the university and just a few blocks from a wide variety of funky shops and restaurants. By doing our research, we had the confidence that we had received a great value home, at a very fair price, that was going to make us both very happy, having met all of our key interests.

As for the Toronto sale, more about that anon…

Paul Godin, Stitt Feld Handy Group

Paul Godin :: About Author :: Email

12 September 2008 | Ideas and Opinions | No Comments

Arbitration Course in Ethiopia

I just returned from another fascinating experience teaching in Ethiopia. While I’m not yet over the jet lag (I got back last Friday), I’m also not over the excitement. Ethiopia is a wonderful country with proud people. We have much to learn from them.

The course I taught was an introductory arbitration course. We were invited by our Ethiopian partner, the Ethiopian Arbitration and Conciliation Centre (EACC) to conduct the course. Participants did not pay a fee to attend, but did agree to conduct one free arbitration for the EACC in return for being able to take the course. The participants were both lawyers and non-lawyers (engineers, architects, business-people). While English is not their first language (it’s Amharic), they have had their University education in English so language was not a big issue.

The debates in the course were lively, the group was energetic and the participants’ questions were sophisticated and challenging. Issues such as whether three arbitrators are better than one become a lot more difficult when the discussion centered on which option reduces the likelihood of the arbitrators accepting bribes (the group consensus was that three arbitrators is better because it’s harder to bribe three arbitrators than one).

My teaching colleague (David Haigh) and I conducted mock arbitrations where we left it to the group to analyze the evidence, apply the law, reach a decision and write reasons. The participants took their tasks very seriously and wrote well-reasoned decisions.

I had the good fortune to visit an orphanage and some schools for underprivileged children. We really enjoyed our time with the children who certainly seemed to enjoy our company (and the gifts we brought).

 
My wife, daughter and I were invited to the house of Dr. Rick Hodes for a wonderful Friday night dinner. Rick is an American-trained doctor who lives in Ethiopia, helping those who most need his help at the Mother Teresa Mission (among other things). He has adopted a number of the children he’s saved and pays for many of the children to go to school. The night we were there, there were about 20 kids at his house for dinner.

The Ethiopian people are extremely kind, considerate, helpful and friendly. They wanted to make sure that we enjoyed our trip, had good food to eat and learned about their culture. I look forward to going back.

Allan Stitt :: About Author :: Email

16 July 2008 | News & Articles | No Comments

Online Dispute Resolution coming

First, I know you’re used to seeing this blog written by Nayla Mitha. I’m very pleased to let you know that Nayla’s engaged, will be getting married later this week and will be moving to Ottawa to be with her new husband, Roger Beaudry. I want to publicly wish Roger an Nayla all the best. Nayla will be moving on to other things in Ottawa and Roger will continue his excellent work with the Stitt Feld Handy Group.

Last week I attended an online dispute resolution (ODR) conference in Victoria BC. One thing that was clear coming out of the conference is that ODR is coming. I’m sure we’ll be resolving disputes very differently 10 years from now than we are now, making use of the new technology. For example, we saw how one California-based mediator uses webcams to hold mediations with people in different locations. He sees everyone on his computer screen (and they see him) and he does his joint session with everyone there. When he goes into caucus, he shuts out one side and talks to the other. I see this becoming a very common process sooner rather than later. It’s obviously a lot less expensive than video-conferencing. I’m trying to learn more about the technology and I suspect we’ll be using it before long.

We’re also hoping to launch our own online dispute resolution product by the end of the year. We’ll be launching Chambersettle, a double blind bidding system. When people have a dispute, they can go to Chambersettle to make offers to each other. Each side will not learn of the other’s offer but will only be told if they reach or don’t reach a deal. They’ll have three rounds to make offers. If they don’t reach a deal but come close, they’ll be told they’re close and encouraged to make one more offer. It’s not a perfect system, of course, and won’t resolve all disputes, but it will be another option for people trying to put disputes behind them.

We’re right in the middle of the technology revolution and it’s exciting. There were 150 people at the ODR conference from all over the world. I’ll keep you advised.

Allan Stitt

Allan Stitt :: About Author :: Email

26 June 2008 | Ideas and Opinions | 1 Comment

Stitt Feld Handy Group teaches ADR to Ethiopian

By Helen Burnett
Law Times, April 21, 2008

Alternative dispute resolution is reportedly catching on in Ethiopia-and it has a Canadian connection. Toronto’s Stitt Feld Handy Group and the Ethiopian Arbitration and Conciliation Centre have recently become partners to run training sessions in the East African country. So far in 2008, two have already been complete.
In February, the Canadian group traveled to Ethiopia to run a course to train members of the ombudsman’s office there, followed in March by a session for a human rights group. In July, the group is returning to teach people how to be arbitrators.
The partnership between the EACC, an independent body established by a group of Ethiopian lawyers, and the Stitt Feld Handy Group began with the EACC wanting to do a course in ADR, says Allan Stitt, president of the Stitt Feld Handy Group and ADR Chambers. The EACC visited the Canadian embassy in Ethiopia, who had heard of the Stitt Feld Handy training, and contacted the group, who then went there to do a few courses for them.
Following these first few training sessions, the group brought the EACC’s executive director, Woubshet Ayele, to Toronto a year and a half ago to show him how they run things at ADR Chambers and to help him with the administration of the centre. A document was then drawn up; with the two groups agreeing that they would work together as joint-venture partners to try to bring ADR to Ethiopia.
The group has also run courses in Trinidad, Barbados, the Bahamas, the U.K., Australia, Hong Kong, the Philippines, and around North America.
People from diverse occupations attend the courses, says Stitt, including lawyers, engineers, architects, construction people, women’s-rights advocates, social workers, family dispute resolution people, and union representatives. “A very wide-ranging people who are extremely keen and know that in other parts of the world there are new and different ways that people are finding dispute resolution processes that work, and they are extremely keen to become leading-edge and to lean what’s going on elsewhere,” he says.
“The groups that I’ve been involved in teaching there are the most respectful, most interesting, fun to be with, keen in the sense of wanting to learn, and enjoyable groups that I teach anywhere in the world,” he says.
While each course is different, says Stitt, the standard EACC course covers how to resolve conflict in an interest-based way, such as how to work with people, how to understand what they’re saying, and how to listen effectively. The general courses that Stitt Feld Handy Group runs for the EACC in negotiation and conflict resolution are usually two one-week sessions with two members of the Canadian group going over to lead the program. People who take the course want the skills for different reasons, says Stitt. “There are some people who are going into the smaller towns to help resolve disputes there and some people who are working in the construction industry right in Addis Ababa,” he says.
The courses are similar to those the group teaches in other countries as well, but Stitt notes that every country has cultural differences. For example, he notes that the challenges around domestic violence issues are “immense” in Ethiopia, and figuring out how to do family law ADR is quite different.
“You adapt what you’re doing to the situation, but the theories are basically the same,” he says. The group hears through the EACC that people are really taking the skills learned through the courses to heart and using them, and they are making a difference. “It’s starting to infiltrate the courts system, and I don’t mean that in a negative way. I mean that in a positive way,” he says. At the last course he attended, the country’s associate chief justice was there and spoke about how people are starting to use ADR skills to resolve disputes, and he certainly sees it as a “wave of the future” in Ethiopia. “It’s being used, I think, both in everyday life and as part of the formal litigation system. It’s really starting to take hold, starting to catch on,” he says.
“The good thing about being able to do the courses is that we get some advocates for the process who are starting to spread the word among people in Ethiopia.” The issue isn’t demand, in terms of people who want the skills, says Stitt, but an enormous challenge is that Ethiopia is the fourth poorest country in the world and many can’t afford to get training. “The only way that the training can happen is if we can get someone to basically, by and large, fund our experts to get there and stay there,” he says.
There is a local businessman in Ethiopia who is involved with the EACC and who funds the group’s accommodation when they are there, says Stitt, and there are various government programs that the centre is able to access to get funding for airfare. The Stitt Feld Handy Group donates its time. The EACC receives funding from the Canadian International Development Agency, as well as the Swedish International Development Cooperation Agency, as well as from Initiative Africa, the French Embassy (on a project basis), and recently from Japan’s embassy.
While the training continues, there may one day be other projects on the horizon for this partnership. Stitt says that his dream and the dream of the executive director of the EACC, a former lawyer, is to somehow figure out how to get the funding to establish a new law school in Ethiopia that teaches the rule of the law.

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15 May 2008 | News & Articles | No Comments

The pitfalls of collective brainpower