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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 [...]

Judges mediate and do other things – whether we like it or not

In his blog post on the 22nd of November, Kenny Aina referred to judges who mediate, commenting that many judges do not possess a mediator’s paradigm. To find out what that is, you will have to read Kenny’s blog. However, like it or not, many judges do mediate, both retired judges and active judges. In this blog, I am going to write about active judges, that is judges who are still on the bench, who mediate or engage in some type of mediative intervention. This is a relevant consideration for legal representatives who may find themselves in court before a judge who wants to mediate their case. But first, some background to the developing field of judicial dispute resolution or JDR.

Conte [...]

The Judge as Mediator: Not for the Faint Hearted

Years ago, I participated in a Richard Salem led mediation skills acquisition training for retired Judges and I will never forget the words of a just retired Chief Judge contemplating a career in mediation “ Kenny, you mean I will just listen without telling the parties what to do? Impossible! Not me!”. I have seen several highly intelligent professionals take up mediation accreditation examinations believing they are qualified mediators. However, they struggle during mediation sessions. Of particular note was a retired justice who after a sterling career at the bench decided to take up mediation actively since he still bubbled with ‘youth’. Alas! His first session was quite a frust [...]