I’ve got to admit that the John Sandford “Prey” crime novels, featuring the complex detective Lucas Davenport, are a guilty pleasure of mine, both in text and particularly audiobook formats. I can usually get through an unabridged audiobook during one of my frequent return car trips between Ottawa, where I live, and Toronto, where I now mediate about 80% of my cases.
The concept of “prey” (in the sense of “take advantage of; exploit or injure; cause constant trouble or distress to”) comes to mind as I read and re-read two recent thought-provoking posts on this blog: Jeff Krivis’ June 16th post, “Settlement Drift” and Michael Landrum’s post, exactly a month later, “Top Ten Miscellaneous Obser [...]
Many years ago I was an avid downhill skier. Nothing took my mind off the pressures of practice like a sun-filled cobalt blue morning sky and a virgin white blanket of new fallen snow to carve my way through. Moguls – those mini-mountains of snow that form on some runs – never failed to induce fear in me. Perched at the top of a triple-diamond mogul run my mind swung between terror and anticipation and I learned over time that the only way to avoid a spill was to let go of the fear and with it the stiffness and the tension in my body. I learned not to focus on each individual mogul but rather to accept the contours of the run as a whole and simply believe all would be well. Mostly it was.[...]
Earlier this month the Supreme Court of Canada issued its unanimous decision in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35. The reasons of Mr. Justice Wagner deal with an unfortunate situation in which Bombardier, which had been suing Union Carbide for more than a decade seeking CAN$30 million related to allegedly defective gas tanks on Sea-Doo personal watercraft, thought it had achieved a settlement following a mediation only to discover that Union Carbide had a much different idea regarding what, in fact, had been settled.
The issue was whether the provisions of a standard mediation agreement providing, “Nothing which transpires in the Mediation will be alleged, referred [...]
Story telling and humor are among the essential tools in any mediator’s kit. Of course, when it comes to humor, mediators learn early in their career that the self-deprecating variety is usually the safest choice. This turns out to be quite good for me since in my life there is no shortage of material to draw on.
In an insurance mediation this week I told a story of a somewhat embarrassing incident in which I had been involved recently. I thought readers of this blog might find the story both interesting and instructive.
I’m a neophyte photographer. I enjoy spending a sunny morning with my digital SLR snapping pictures of the various birds and flowers that grace my backyard. Here’s a recent [...]
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 [...]
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!)
Section 11 of the Limitations Act (Onta [...]
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.
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 [...]
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 [...]
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 [...]
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 [...]