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Court Involvement in Mediation

Many jurisdictions have grappled with the extent to which their courts should get themselves involved in the mediation of litigated cases.

Many different approaches have found favour around the globe, with diverse programs being implemented in courts from Hong Kong to Florida and places in between. Some courts are hands off while others are heavy handed – regulating every aspect and some even use judges to mediate.

Some programs are creatures of statute, others are mandated by procedural rules while others simply rely on a mediation friendly presiding judge. Some courts, I suspect, see mediation as a competitor – taking the best cases out of the system and contributing to the vanishing tr [...]

Singapore Development – Joint Launch of the State Courts Centre for Dispute Resolution and “Mediation in Singapore: A Practical Guide”

I’d like to spend this month’s blog entry providing an update on a Singapore development. On the 4 March 2015, there was the launch of the State Courts Centre for Dispute Resolution by the Chief Justice of Singapore, Mr. Sundaresh Menon.

At the same time, Thomson Reuters also launched their book “Mediation in Singapore: A Practical Guide” which houses the contributions of a diverse group of mediators and mediation advocates in private practice, academia, judiciary and government.

This author hopes to provide a review of this book in a future entry. For the moment, this entry will focus on the State Courts Centre for Dispute Resolution.

The State Courts has had a long relationship [...]

Deal or no deal in high profile hockey case?

Hockey is a deeply ingrained part of the Canadian identity so it’s not surprising that the Country has been abuzz this week around the question: “Has a high profile 10-year old case been settled through mediation or not?”

The case, Moore v. Bertuzzi et al,  arose from events that occurred during a National Hockey League (NHL) match in March 0f 2004. The incident has its own Wikipedia page which can be viewed here. The ending of Steve Moore’s career spawned a decade long law suit which was coming to trial next month. The trial would have generated considerable interest as it would have involved a full expose of the so-called “fight culture” of the NHL (see here for example); not something th [...]

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 [...]

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 [...]

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 [...]

Durability of Mediated Settlements and More

In what I hope readers of this blog will consider a deft segue, I want to shift from the successful judicial mediation that I highlighted last month to one that didn’t proceed quite so smoothly.

Deals negotiated in mediation tend to hold or, at least, that’s been the conventional wisdom. The theory is that because of the consensual nature of the process parties tend to abide by the agreements they’ve struck in mediation.

In Ontario we’ve just had a rare high profile example of a situation where that wasn’t the case. A news summary of the decision in Kidd v. The Canada Life Assurance Co. can be read here and the full decision of Justice Perrel can be seen here. Both the article and th [...]

The New German Mediation Law finally came into force

Finally, after a long parliamentary struggle, the German Mediation Act (Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung) was signed into law by the President of the Federal Republic (Bundespräsident) on July 21, 2012. Four days later it was published in the Federal Gazette (Bundesgesetzblatt) BGBl. I, 2012, S. 1577, and came into force on July 26, 2012.

When I reported in early January that the law was passed in Bundestag, it might have appeared that just a couple of weeks are needed to finalize the legislative process. However it soon turned out that the Mediation Act required the Mediation Committee (Vermittlungsausschuss) of the upper [...]

Mediation Evolution

Two stories in the Canadian media caught my eye this past month.

New Rules for Bank Mediators – The Federal Minister of Finance has indicated that the Canadian federal government will not require banks to mediate their disputes with customers through mediation services offered by the Ombudsman for Banking Services and Investments (OBSI). OSBI is an independent and impartial office founded in 1996 and funded by the banking industry. In recent years certain banks have abandon OBSI in favour of private, for profit, mediation firms. This move has drawn criticism from some quarter on the theory that the impartiality of ADR providers may be in doubt if the bank is paying the full cost for the medi [...]

New German Mediation Law passed in the Bundestag

On December 15, 2011, the Act for the Promotion of Mediation and other Procedures of Extrajudicial Conflict Settlement (Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung) was passed in the “lower chamber” of the German parliament (Deutscher Bundestag).

The adoption of the Act was based on the recommendation of the Legal Committee (Beschlussempfehlung und Bericht des Rechtsausschusses), which – as stressed in the official release – was made unanimously by all five political factions in the Bundestag (i.e. in a truly mediation-like manner!). The Committee agreed on a number of amendments to the original draft presented in April 2011 (1 [...]