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Ontario Decision Highlights Settlement Related Issues in Mediation

The recent Ontario Superior Court decision of Healy J. in Southlake Regional Health Centre v. Beswick Group Properties touches on a number of issues arising from settlement at mediation.

Briefly, this was a landlord and tenant dispute relating to a Medical Arts Building and other development lands. The full factual background can be read by linking to the decision above. Basically the landlord and tenant sued each other in 2011 alleging various breaches of a development agreement and lease. Those disputes went to mediation with Larry Banack, a well known and highly respected Ontario mediator, in September 2013 and a settlement was reached. The mediator drafted the Settlement Agreement which [...]

Mediation Roundup from the Polar Vortex

Greetings from the heart of the Polar Vortex!

Yes, it’s been a brutally cold and snowy winter here in Ontario, Canada, but now, in late February, the lengthening days and (relatively) warmer temperatures remind me of that point in a mediation when it seems that all hope of resolution has forever frozen over and yet, with mediator encouragement and persistence, small cracks appears in the ice, the parties’ attitudes slowly begin to thaw and one can discern the stirring buds of resolution, just below the surface, imbued with nature’s force, striving to burst forth into the sunlight. (Ed. note: enough, surely!)

Agreements to Mediate and Limitation Periods

Section 11 of the Limitations Act (Onta [...]

Opening Offers in Mediation

An article by Donalee Moulton in the January 24th issue of The Lawyers Weekly entitled, “Opening offers can make or break a deal” caught my attention and caused me to reflect on my own experience from approximately 3,000 mediations conducted over the past 22 years.

I urge readers to look a the Lawyers Weekly article as well as some of the other web resources on this topic including this posting by Matthew Rushton and this by the Hon. Jay C. Gandhi.

Much of the advice boils down to, “don’t be afraid to make the first offer in mediation, so long as it’s a reasonable offer, because by so doing you are anchoring the negotiation that follows and research shows that this “anchoring eff [...]

Mediation Conduct Punished by Costs.

Should the conduct of a party in mediation be taken into account in setting cost consequences once the dispute has been adjudicated?

An insurer has been “spanked” to the tune of $60,000 by an Ontario Court for failure to participate in a mediation in “any meaningful sense”. The cost decision of Mr. Justice Ramsay in Ross v. Bacchus, 2013 ONSC 7773 (CanLII) creates the occasion to reflect on this important issue.

Briefly, the case facts are that the plaintiff, injured in a motor vehicle accident, was awarded $248,000 after a six day trial. The plaintiff then asked for $140,000 for costs, augmented by another $60,000 for the defendant’s failure to comply with its obligations under th [...]

Effective Mediation Advocacy

What constitutes effective mediation advocacy? Litigation lawyers in an ever-increasing number of jurisdictions around the world understand that mediation is becoming or has become the primary dispute resolution forum and thereforenaturally are interested in acquiring and enhancing the knowledge and skills necessary to effectively represent their clients in the mediation process.

Earlier this year the International Mediation Institute addressed this issue when it released its “IMI Mediation Advocacy Competency Criteria“.

Now, Osgoode Hall Law School in Toronto, Canada is presenting what promises to be a very interesting and dynamic two-day course on Mediation Advocacy, December 10th and 11th [...]

Lying and Mediation

Its interesting to me that when you Google “lying” and “mediation” you are redirected to “lying” (as in lying down) and “meditation”.

Recently my attention was drawn back to the old issue of deception in mediation. It’s an issue that mediators, lawyers and parties engaged in mediation or negotiation do well to reflect on from time to time.

Some time ago I conducted an employment-related mediation. The case did not settle on the day of the mediation and, as is usually my practice, I followed up with a “double-blind” mediator proposal following the mediation. The “double-blind” proposal is a mediator tool whereby the mediator makes a settlement proposal, asking each side to consider the p [...]

Judicial Dispute Resolution in Ontario

The Civil Justice system in Ontario is broken; badly broken.

Not a week goes by without another report decrying the sad state of affairs in our Courts. Consider the article from the most recent Law Times entitled, Lawyers frustrated as motion delays hit 7 months”. The articles quotes Roger Oatley, one of the deans of the Ontario personal injury bar, as saying, “It’s completely unacceptable that the court tells a litigant who is ready for a trial that they have to wait 2-1/2 years.” For him and many others the solution is spending more money on the administration of justice.

While the problems are universally recognized there is less consensus when it comes to causes and solutions. For [...]

Dignity & Respect in Mediation

Sorry (as we Canadians tend to say a lot). I’m A few days late with this post as I’ve been vacationing in London U.K. with my wife and 14-year old daughter. (Wonderful time, thanks). Today is my first day back in the office after the two weeks away and I’m sure readers will know what that’s like. Thankfully I have a week before I start a full schedule of mediations starting in September. But already the Briefs are piling up and there’s a predictable increase of emails from anxious legal assistants.

On top of that today is my 60th birthday. They say it’s the new 40 but I’m not so sure about that. As you’d expect the prospect of the busy fall schedule combined with a change in the first number [...]

Canadian Summer Mediation Roundup

As Ella Fitzgerald used to sing, Summertime and the livin’ is easy. Your faithful Canadian correspondent knows you are craving mediation-related reading to help you while away those lazy, crazy-hazy days of summer. Four recent Canadian judicial decisions should fill the bill.

Supreme Court of Canada encourages Pierringer Agreements.

In June the Supreme Court of Canada released it’s unanimous decision in Sable Offshore Energy Inc. v. Ameron International Corp. As set out in the headnote, “Sable Offshore Energy Inc. sued a number of defendants who had supplied it with paint intended to prevent corrosion of Sable’s offshore structures and onshore facilities.  Sable also sued several co [...]

Nortel Saga Continues

Faithful readers will recall my posts here and here mentioning the failed mediation relating to the international effort to reach an agreement on the distribution of some $9 Billion in assets remaining from the Nortel insolvency.

The Ontario Courts are now struggling with the fallout from that failed mediation. This week saw the release of a decision by the Ontario Court of Appeal refusing to overturn the earlier decision of Justice Morawetz of the Ontario Superior Court basically approving an “Allocation Protocol” setting out a proposed procedure for coming to a binding decision on how the $9 Billion is to be allocated.

Central to that proposed protocol is a joint hearing between the Ca [...]