Often when I’m mediating a difficult case; the parties, running hot, miles apart and showing no sign of movement, an inner voice whispers softly to me, “it’s just not ripe for settlement.” It’s an attractive concept because it lets me off the hook. Nothing to be done here until the case ripens. I might as…
My work as a commercial mediator in Ontario Canada generally involves the resolution of money disputes. The process, most days, starts with a brief joint session during which the lawyers, and sometimes the clients, advocate for their perspective on the dispute. We then break to a caucus format and I become the shuttle diplomat usually…
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…
Some disputes are more suitable for mediation than others. Counsel and their clients contemplating whether or not to mediate a particular dispute can sometimes benefit from a more structured approach to analyzing that question. It was with this in mind that many years ago my then partner and I designed the Mediation Suitability Checklist. The…
If you’re in a jurisdiction with some sort of mandatory mediation program its worth reading the reasons of Mr. Justice Sloan of the Ontario Superior Court of Justice in Cornie v Security National and three companion Actions. Many lessons can be drawn from this decision depending on your perspective, but to me one clear lesson…
The Kluwer Mediation Blog provides an excellent opportunity for all of us to learn more about the practice of mediation around the world. I’ve had the privilege of training mediators in a number of places outside Canada including Russia, Albania, Uganda and Lesotho and know that practice experiences vary widely from place to place. In…
Picking up where I left off last post, I want to discuss what I consider to be a major problem with the Ontario Commercial Mediation Act, 2010 (OCMA) relating to the admissibility of evidence of what occurred during a mediation. Generally (with some exceptions) at Common Law anything said or done in mediation is inadmissible…
As I open each mediation session I remind everyone that the mediation is “confidential”, “without prejudice”, “off the record”. I acknowledged that these three concepts don’t mean precisely the same thing at law but that for practical purposes it is our common intention and agreement that “what’s said here, stays here.” I know there’s more…
You have a choice to make. In front of you stand two doors. If you go through the door on the right you will receive $20. If you choose the left door you will have a one in five chance of receiving $100. Which door do you choose? It is now well accepted that the…
This morning I was greeted with the news that Julian Barnes’ The Sense of An Ending had been named this year’s winner of the Man Booker Prize. A wonderful read, in part about how our memory deceives us, it struck me as an appropriate point of departure for this blog post. Like Barnses’ narrator, “I…
