Brian

Deena
Khesrau
Neha
Nilofar
Raaj
Zamir

Group Presentation March 29, 2012

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

Commonly identified values included confidentiality; party self-

determination; neutrality; balancing power; ensuring fairness of process;
achieving settlement and maintaining the reputation of the resolution
facilitator.

Pervaded by faith in a rational approach to problem solving generally.

This rational approach must be flexible enough however, to factor into
the resolution process, vast dimensions of human psychology and the
entire spectrum of human emotions that can be engaged by civil law
disputes. (It goes without saying that this is no easy task).

ADR requires the facilitation of a third party neutral. These include

arbitrators, mediators and negotiators.
 For the sake of brevity, this presentation focuses primarily upon a general outline
of Arbitration, Mediation and Negotiation as they exist within a civil law context.
The reason for constraining this paper to a consideration of only these three
forms of ADR is because most of the key principles applied to and underlying
these three processes pervade virtually all forms of alternative dispute resolution.
 Most formal in nature.
Arbitrations within a civil law context are generally designed
to be binding.
The single most important distinction between arbitration
and mediation therefore is that the decision of the arbitrator,
unless otherwise agreed, will be binding and the decision
may be entered on the court record.
More generally an arbitrator is invested with the authority to
impose a resolution to a dispute.
 Leaves the decision making power in the hands of the disputants.
Process is directed more by the needs and interests of the disputants
themselves than by the decisions of a third party arbitrator.
Mediation is voluntary; nothing happens without the parties' consent
(except for mandatory mediation in some legal contexts).
The parties retain a high degree of control. The mediator does not make a
decision, but rather works with the parties to assist them in finding a
solution to the dispute that is satisfactory to them.
Mediation does not determine right or wrong. (Is this inconsistent with the
pursuit of justice?)
In Canada Mediation has been entrenched in statutory provisions
In the Educational front, law schools and graduate programs have
introduced courses in mediation and alternative dispute resolution .
 Negotiation requires parties to bargain without outside
assistance, exchanging compromises to reach a solution. In
this approach parties can begin bargaining discussions at the
beginning of a dispute without the presence of legal
representation.
Like mediation, settlement discussions within a negotiation
context are controlled entirely by the parties
For negotiation to succeed, it requires the complete
cooperation of the parties. If participants lack the necessary
motivation to resolve the conflict through compromise,
settlement will be difficult if not impossible
 Depends upon the goodwill of all the participants
Parties must believe that a settlement achieved through cooperation and
compromise whether assisted by a mediator, arbitrator or the parties
themselves, will be superior to the decision that would be handed down by a
court
Participants must agree at the outset that all sides involved enjoy equal
authority in reaching a settlement.
Important objectives must be identified and lesser objectives subordinated in
favour of a desired outcome
Empowerment of the participants at every step of the settlement process is
essential
ADR mechanisms require that any involved organization be represented by
persons with sufficient authority to bind the organization they represent.
As a corollary to the involved parties dedication to the settlement process, a
commitment to open and equal access to information is necessary
 ADR lacks legal recourse against a party that refuses to honor a
negotiated settlement
In many instances there is no means to compel the continuance of
an ADR process where one of the parties ceases to cooperate.
Compensation in ADR is largely undefined.
Advocates of mediation point out that this process allows parties
to resolve conflict in a conciliatory fashion without resort to an
authoritative third party, arguing that mediation decreases the
costs of dispute resolution and reducing demand on court
resources and allows conflict to be resolved at a much quicker
pace.
Critics contend that the virtues of mediation are largely
overstated. They argue that mediation creates a second class
justice system in which the safeguards of procedural justice are
sacrificed to cost, speed and efficiency
 Based on the available evidence in the form of the proliferation of ADR
alternatives in a civil law context, one inference that could reasonably be
drawn is that the ADR phenomenon itself is directly linked to the frustration
of participants exposed to the formal justice system and to a general
perception of formal legal procedure as often ponderously slow and
inefficient
Additionally the increasing demand for ADR alternatives further gives rise to
questions concerning the burgeoning of a new profession
Would a movement towards regulation of the practice take ADR outside of
the informal realm altogether, undermining the general perception of a
genuine alternative to formal procedure?
Questions concerning the qualifications of effective ADR practitioners
remain
 Several approaches to ADR recognize the importance of a conflicts
narrative. The role of the ADR facilitator in this view is to shape the
negotiations narrative. This view attaches profound relevance to
narratives of conflict generally and presumes that every conflict is
authored from particular perspectives.
There are very important distinctions to be made between conflict within
the context of a trial versus the way conflict in an ADR context
An ADR facilitator on the other hand plays a role in focusing and shaping
the narrative of conflict but the involved parties play have a more active
role in structuring the outcome of the narrative and of editing the
narrative at every stage of the process.
In this view recognizes that throughout an ADR process, objectives are
defined and concessions made yet the crafting of a settlement may very
well be best described as the construction of narratives of possibility
 Real constraints must be recognized and acknowledged yet from these
perceived limits alternatives are explored with a view towards achieving
mutually agreeable outcomes.
ADR represents a fundamentally different approach to conflict than the
traditional justice system model and is also consistent with the kind of
paradigm shift referred to and discussed by Jensen. The crafting of win-
win solutions within an alternative dispute resolution context can be
likened to an art form wherein parties are guided towards authoring their
own outcomes.
The consequence is an empowering one, elevating parties to conflict to a
level that allows them to take a degree of authorship over the conflict
itself.
ADR is in essence a process of party self-determination
 There are vast psychological dimensions to both approaches to conflict.
Arbitration aside, ADR methods such as mediation and negotiation move away
from the traditional model of conflict resolution by adjudication.
ADR methods understood as authorial in nature, that is, understood as a process
whereby the involved parties are engaged in shaping the outcome and even of
reconstituting the nature of the conflict as the ADR process evolves is an exciting
innovation in thinking about the very nature of civil disputes generally
Sossin asks; when cases are streamed out of the courts and into ADR, is this a
measure of the success or the failure of the justice system? He suggests that the
answer may simply be that it is both.
Perhaps however it is the case that the growing proliferation of ADR alternatives
simply suggests the evolution of human thinking about the nature of conflict?
The further development of ever more sophisticated cooperative mechanisms for
dispute resolution may be commensurate with a new sophistication of human
understanding.
Perhaps it is more simply the case that the development of complex civil societies
implies the development of effective, alternative and in some instances even
transformative mechanisms for dealing with civil law conflicts.
 Does ADR (particularly mediation) impede the pursuit of Justice?
As a consequence of the literature review conducted, various questions emerged
that may be conducive to both in class discussions as well as to further research
in the area of ADR.
The role of the ADR professional, who is s/he and what is her/his nature? What is
it exactly that she does and who is she while doing it?
What really guides the ADR practitioner throughout the resolution process? Are
the laudable principles and values applied to fact based scenarios really what
propel the resolution process or are there key intangible factors at work and if so
what are they and how do they impact the resolution process?
These questions have both practical and ethical dimensions and require looking
at the practice of ADR as something more than simply the application of abstract
principles to conflict scenarios.
The ADR professionals intimate connection to processes and outcomes raises
both practical and ethical questions relevant to just determinations of civil law
disputes generally.
Nilofar
Settlement is a conciliation process in which
the parties involved (the plaintiff and
defendant or their lawyer representatives)
make an effort to come up with an
agreement concerning a dispute.
The method of settlement
in dispute resolutions have
become so popular in
Canada that in 2001 the
Superior Court in Quebec
established a settlement
conference, which is
governed by Chapter XII of
the Rules of Practice in
civil matters of the
Qubec Superior Court
(articles 70 to 78) (Vadnais,
2002).
Superior Court of Qubec
Settlement conference
Code of Civil Procedure
Settlement Conference
At any stage
Art. 151.15. At any stage of the proceeding, the chief justice or chief judge may, at the request of the parties, designate a judge to preside a settlement
conference. In their request, the parties must present a summary of the questions at issue. [...]
Purpose
Art. 151.16. The purpose of a settlement conference is to facilitate dialogue between the parties and help them to identify their interests, assess their
positions, negotiate and explore mutually satisfactory solutions.
A settlement conference is held in private, at no cost to the parties and without formality.
Participants
Art. 151.17. A settlement conference is held in the presence of the parties, and, if the parties so wish, in the presence of their attorneys. With the consent
of the parties, the presiding judge may meet with the parties separately. Other persons may also take part in the conference if the judge and the parties
consider that their presence would be helpful in resolving the dispute.
Proceeding continued
Art. 151.19. The settlement conference does not suspend the proceeding, but the judge presiding the conference may, if necessary, modify the timetable.
Presence or availability
Art. 151.20. The parties must ensure that the persons who have authority to conclude an agreement are present at the settlement conference, or that they
may be reached at all times to give their consent.
Confidentiality
Art. 151.21. Anything said or written during a settlement conference is confidential.
Would you like to settle your dispute out of court ?
Are you prepared to make the effort needed to find a satisfactory solution to your dispute ?
Do you think you could work with the other party to find a practical win-win solution ?
If so, a judge of the Superior Court may help you and the other party engage in a dialogue to find a suitable solution to your dispute. The judge will
facilitate the smooth running of the conference.
The settlement conference service is
FAST : a date for the settlement conference is set without delay as soon as the parties have agreed upon a date;
FREE OF CHARGE: presiding settlement conferences are part of a judge's duties;
CONFIDENTIAL : a settlement conference is held in private; all the participants sign a confidentiality agreement which they and the judge must respect;
BENEFICIAL : reaching a settlement puts an end to the costs and to the likelihood of a trial; and
A MEASURE OF REASSURANCE: a settlement of the case will give you peace of mind.
cost reduction argument: The
building blocks of this argument
suggests that the optimal result
in a legal conflict can be
attained by resolving the
conflict before litigation takes
place, the first attempt to settle
the conflict has a great
probability of success, and the
remuneration of employing
settlement will compensate the
costs even if settlement is not
the outcome.
 More peaceful means: Settlement has also been
recommended to be a better approach in the healing
process of resolving disputes than are court trials. It is
suggested that negotiation is better for the peace of
mind or psychological mind-set of the clients involved
in the case than is the long process of court trials,
whose decisions consistently require remedies or
even get appealed over and over again.
Interviews conducted by Wall and
colleagues display that most judges prefer
cases to be settled outside of the court
system. The two main reasons as to why
judges prefer settlement are that trials are
not expedient and so clients will have to
wait two or more years in order to get a
conflict resolution, most of the time for
cases clients will have to invest more time
and money in preparing for the case than
what it is actually worth and also judges
encourage settlement as they get too
many cases on their plate that they see as
a burden on them and the court system.
Raaj
 ADR History
ADR Neutral Characteristics
Mediator - patient, intuitive, conceptual, artistic,
holistic and emotional
Arbitrator - analytical, mathematical, logical,
technical and administrative
ADR Tools
Mediation
Arbitration
Early Neutral Evaluation
Med-Arb
Summary Jury Trials and Minitrials
 Beasley v. Wells Fargo Bank
1986 - Alice M. Beasley files class action against Wells Fargo
Recovery of fees and injunction against future imposition of fees
A California state court jury awarded $5.2 Million for
excessive late and over-limit fees and an additional $2 Million
in attorneys' fees
Leary v. Wells Fargo Bank
1991 Banks conspired to fix interest rates on consumer credit cards
Over $1 Billion in damages claimed
Wells Fargo and First Interstate Bank of California settled
The BayBanks Settlement
Second mortgage scandals rocks America in early 1990s
Bay Bank Inc. one of the main accused settled
$6 Million in affordable housing; $5 Million low interest loans
Restitution for 11000 customers
 Impact on Business
1995 49 million Americans with disabilities
Major income source to any business
Add families and friends to being sensitive to barriers
Partnering
Informal Dispute Resolution
Partner a neutral with experience
Case study access to bathroom
Mediation & Arbitration
Loss of Goodwill - Arbitration
 Stages in Periodic Review
of ADR
Upon Initial Evaluation
Before engagement of
outside counsel
Continued Corporate Use of Before commencement of
proceedings
ADR Before closure of pleadings
If discovery is ineffective
Measurement and Evaluation Budget review periods
Communication breakdown
ADR Training and Material decrease in risk
assessment
Communication
Building Support for ADR

Institutionalizing ADR

Adoption of ADR Policy

Deena
 ADR is not new to Aboriginal societies (i.e. tribal peacemaking)

Clash between Western and Aboriginal approaches to dispute resolution

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

Examples of ADR approaches in the Aboriginal context:

Tribunals and Commissions: Indian Specific Claims Commission (ISCC);

Specific Claims Tribunal; Treaty Four Administrative Tribunal; Mtis
Settlements Tribunal

Aboriginal courts: Dene and Cree Courts (SK); Tsuu Tina First Nation Court
(AB)

Pure Aboriginal ADR processes: elders advisory panels, community

committees, family group conferencing, community mediation circles
Zamir
 Biographical Sketch
Overview
What is ADR?
What are the Civil Procedure Rules?
Has it worked?
 Sye Landau and Daryl Landau
 Biographical Sketch
Overview
What workplace mediation Involves
Substantive component
Relationship component
Partnering
Neha
 Family Law in Canada is governed, for the most part, by
provincial law, although Federal law covers divorce. The brief
presentation will deal only with Marriage and Divorce under
the Family Justice umbrella.
Federal
Divorce Act R.S.C. 1985, c.3. (2nd Supp.)
Provincial
Child and Family Services Act, R.S.O. 1990 c. C. 11.
Childrens Law Reform Act, R.S.O. 1990 c. C.12.
Family Law Act, R.S.O. 1990 c. F. 3.
Marriage Act, R.S.O. 1990 c. M. 3.
Source: Statistics Canada Report on Family Court cases involving child custody, access and support
arrangements, 2009/2010 by Mary Bess Kelly
 Divorce Other Family Other Unknown Total
Breakdown
Total Active 111, 626 110, 189 93, 699 13, 737 329, 251
Since 1 year of Greater than 2 Greater than 2 Greater than 3 Greater than
Initiation less years to 3 years to 4 years 4 years

% 49 26 9 5 12
 Children of Divorce
http://www.youtube.com/watch?v=5TvsX8bJMXg&feature=related
 With fewer people entering into marriages combined
with more children being born out of wedlock result in
child custody and child support cases to suffer through
multitudinous legal problems.
Cases involving access were found to have a higher
average number of disposition events per case (3.2)
during 2009/2010 than child support (2.5) or custody
cases (2.0).
Private Settlement

Arbitration

Mediation

Collaborative Family Law

Mediation
Ask for openness when information is being closely
guarded by both parties.
View the dispute as symptomatic, and the task as the
reconciliation of broader underlying interests.

Litigation
Structures the dispute as a normative conflict, one that must be
resolved through a comparison and measurement of legal rights and
obligations.
Introductory stage: setting up rules and answering questions;

Definition Stage; whereby the issues on which the parties

already agree are identified as well as the areas of contention

Negotiation stage: focusing on individual issues to narrow and

simplify the process

Agreement Stage: the parties nail down the finer points of their
settlement

Contracting Stage: the parties attending the mediation review

the agreement.
 The evolution of Lawyers Roles in Mandatory Mediation: A Condition of
Systemic Transformation-Michaela Keet
The civil mediation program in Saskatchewan's Court of Queen's Bench is one
of Canada's first and longest experiences with comprehensive mandatory
mediation.
The program found:
Increase in Lawyers confidence about recommending mediation
A significant shift in the professions response to mediation
clients valuation for the opportunity of a face- to- face meetings

The evaluations thus far have concentrated on efficiency measures such as

settlement rates, cost, time and degree of lawyer and client satisfaction.
Innovator: Stuart Webb a Minneapolis Attorney

CL seeks to realize the benefits of client participation and interest- based negotiation
through the active involvement of lawyers as both facilitators and advocates.

CL requires both lawyers and clients work together in open four-way sessions toward the
resolution of their dispute.

CL process is structured according to rules of engagement and disengagement, that are

set out in agreements entered into by both clients and their lawyers.

Guiding Principle: the CL agreement requires open disclosure of all material information
within the four-way session and demand that lawyers cease representing their clients if
the process fails to generate a settlement.
Gender Power Imbalances that often led to varying, and often problematic
results.

There are inevitable limits on the extent to which any dispute resolution
process can address inequalities in bargaining power that are rooted in
social structures and relations external to the bargaining process.

Mediation obscures inequitable outcomes and legitimizes them as a

product of voluntary consent.

Adjudication can provide a public record, provide a check on the quality of

legal representation, and has the potential to generate new substantive
norms, but it is also highly constrained in its ability to address poverty and
inequality.
Gender Power Imbalances that often led to varying, and often problematic results.
There are inevitable limits on the extent to which any dispute resolution process can
address the embedded gender inequalities in bargaining power that are rooted in social
structures and relations external to the bargaining process.

Mediation obscures inequitable outcomes and legitimizes them as a product of voluntary

consent.
Adjudication can provide a public record, provide a check on the quality of legal
representation, and has the potential to generate new substantive norms, but it is also
highly constrained in its ability to address poverty and inequality.
In 2006, the Ontario legislature in recognition of the gender imbalances especially in
family arbitrations based on religious laws was declared to have no legal effect with no
enforceability by the courts.
With the popularity of ADR Methods as cost and time effective strategies at rise,
what can be done by courts/judges and legislatures imposing mandatory
mediation or collaborative law to remove gender imbalance currently shared
between disputing parties?

What view of the family has informed legal change? Is it a consistent view? What
are the implications of that choice?

Note: Is the perception informed by the marriages that existed between Mr. Brady
and Mrs. Brady in the Brady Bunch or rather the common-law marriage of
Brangelina with 3 biological and 4 adopted children (reflecting a fundamental shift
in economical structure of our society, and market posited by liberal ideology.)
Khesrau Ahmadi
 History
Hann Report
-Increased efficiency in case management
-Reduced time in disposing of cases
-Decreased costs to litigants
-Resulted in 40 percent of cases settling
earlier than the litigation process.
-In general, lawyers and litigants expressed
satisfaction with the mediation process under
r. 24.1
 History
Different Objectives
- Improving the quality of the civil justice system to make it
less stressful for litigants engaged with civil justice
- Giving control to the people in developing solutions that
affected them
- Broadening the parameters of dispute
- Mediation made civil justice more accessible
- Changing court culture
- Implementing systemic shift towards settlements in the civil
justice system
 Timely Information Disclosure
Mediator Supply and Demand
Mediator Remuneration
Authority to Settle
Uniform Standards and Codes of Conduct
Compulsory Information Session