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!
Stitt Feld Handy Group / ADR Chambers
:: About Author
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!
:: About Author
By Paul Godin
ADR Chambers/Stitt Feld Handy Group
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.
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.
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.
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.
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
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?
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.
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!
:: About Author
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
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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.
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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.
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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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If meetings are widely considered a waste of time, that’s because, well, they can be a waste of time. Paul Godin, a mediator with Stitt Feld Handy Group in Toronto, says that too often meetings have no clear purpose, plan or outcome. “People are happy to talk about what’s wrong, what could be done, what should be done, but without ever committing themselves to a plan of action moving forward. Meetings can be hijacked by verbal chaos that makes people feel like pulling their hair out.”
Jeff Gibson is vice-president of consulting for the Table Group, a California-based company. He’s heard more than his fair share of hyperbolic statements about workplace meetings. “People often say to us that they’d really love their job if they didn’t have to go to meetings and manage people, which is really a little tragic. If you think about it, at a certain point in your career, what else do you do?” Continue reading this entry »
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As you may know, the Ontario Human Rights Commission is one of the many government bodies that offers mediation as process to help resolve the complaints that it receives. You may have also heard that there are going to be some changes to the way that the Ontario Human Rights Commission handles complaints. I was curious about the reforms and was able to dig up the following summary of the changes from the Ministry of the Attorney General’s website. Please click on the link below for more information. Continue reading this entry »
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The Ethiopian Herald (National Section)
Friday February 29, 2008
Addis Ababa – A 10-day training attended by officials of the Ethiopian Institution for the Ombudsman on Alternative Dispute Resolution (ADR) wound up at Ghion Hotel here yesterday.
After handing outs certificates to the trainees, Institution Chief Ombudsman with the Rank of Minister, Abay Tekle said that the training is so helpful to offer negotiation, mediation, and arbitration services for parties who would want to avoid courses of litigation which is cumbersome and costs much. He further said the members of the Institution would be able to conduct the ADR mechanisms effectively and efficiently in discharging their responsibilities.
The training was organized by the Ethiopian Arbitration and Conciliation Centre and Stitt Feld Handy Group.
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We’ve all heard them: “I’m sorry to tell you this, and don’t worry, but . . . ”. Or, “I’m sure you’ll look back on this and think it was the best thing that ever happened.” I’m sure this kind of comment didn’t sound or feel true to you, whether you heard it or felt compelled to say it. In these types of situations–dismissals, performance problems, re-organizations, etc., the challenge is to deliver the message while maintaining the best possible relationship. Here are some ideas about making this two-pronged task easier.
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Smyth v. Medical Advisory Committee of the Perth
2007 CanLII 46718 (ON S.C.) – November 2, 2007
Arbitration ruling (the “Ruling) – The parties agreed to have the issues pertaining to the Medical Advisory Committee’s denial of Dr. Smyth’s request for hospital privileges dealt with by way of binding and confidential arbitration – The Arbitrator’s Ruling supported the denial of his reappointment to the medical staff at Falls District Hospital – Dr. Smyth applied to have the Ruling set aside, arguing that the Arbitrator dealt with issues that went beyond the scope of the Arbitration Agreement – He submitted that the issues to be dealt with at the Arbitration were intended to be two narrow issues that were specifically reiterated in the Arbitration Agreement – The Respondents argued that the what was put before the arbitrator was the appropriateness of the Medical Advisory Committee’s recommendation and the broader issue of the disposition of Dr. Smyth’s application for reappointment – The Court disagreed with the Respondent’s position and found that the only two issues that were to be dealt with at the arbitration hearing were the two issues specifically reiterated in the Arbitration Agreement – Had the parties intended the scope of the Arbitration Agreement to include additional matters, specific wording, such as a basket clause, would have been included in it – The Ruling made by the Arbitrator clearly dealt with matters beyond the scope of the two specific issues set out in the Arbitration Agreement – The Ruling was set aside and a new Arbitration hearing on the two specific issues was ordered – Dr. Smyth was granted full hospital privileges pending the completion of the new arbitration hearing.
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Condominium Corporation Failed to Follow Mandatory Mediation and Arbitration Provisions
Metropolitan Condominium Corporation No. 1143 v. Peng
2008 CanLII 1951 (ON S.C.) – January 25, 2008
Condominium Act (the “Act”) – Mandatory mediation and arbitration provisions – MTCC 1143 (the “Corporation”) alleged that Li Peng (a unit owner) conducted himself in a loud and disturbing manner, contrary to the Corporation’s Rules – Li submitted that he did not behave in an inappropriate manner that would have disturbed his neighbours – From May 2005 to January 2007, the Corporation sent Li eight letters complaining about his conduct, without response from Li – Continue reading this entry »
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Supreme Court of Canada Rules on Arbitration Clauses in Web-based Contracts
Dell Computer Corp. v. Union des Consommateurs
2007 SCC 34 - July 13, 2007
Web-based contract - Arbitration clause - Dell’s website had an error in pricing on it for 2 types of handheld computers - When Dell became aware of the errors, it blocked access to the order pages through it’s main website and posted a correction notice - However, a consumer (O. Dumoulin) was able to get into the page through a different route and ordered a handheld at the lower price - When Dell refused to honour Dumoulin’s order at the lower price, the Consumer Union and Dumoulin filed a motion to bring a class action against Dell - Dell applied for referral of Dumoulin’s claim to arbitration Continue reading this entry »
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A Dedication Part 2 to Peter Dreyer & Nayla Mitha
By Tonia Robinson - Oct. 5, 2007
It’s good to be great!
It’s even better to feel great!
But when you meet two people who are
Exceptional at doing both