The Legal Artichoke

Thus far, this blog has focused on the many benefits of mediation and alternative dispute resolution (ADR). But one of the things about ADR is that it is an alternative, as is indicated by its name. It allows for parties to have options to litigation should they decide it is not in their best interest for whatever reason. It allows for more creative problem solving where there is opportunity for it. So when mediation becomes mandatory and is imposed on parties, does it lose some of its benefits? Rule 24.1 of the Ontario Rules of Civil Procedure 1 requires that civil matters which are subject to case management 2 must have a mandatory mediation in the cities of Toronto, Ottawa, and Windsor before they can go on to litigation. While family matters are excluded from mandatory mediation, estates, trusts and substitute decisions are also included by Rule 75.1. Essentially then, parties who are involved in conflicts in these legal and geographical areas are forced to go thro...

In 2009, Ontario came out with the Apology Act 1 . The Act says that apologies given can not later be used against the offender to show guilt or responsibility for a legal matter. However, it does not apply to provincial offences, nor in criminal settings, where apologies can be used against the offender. Today I wanted to consider the following questions: What is an apology? When can an apology be used? And does the Act undermine apologies, or is it a good thing? What is an apology? The first thing to consider is what the content of the apology is. Of course, this is going to depend on what the apology is for, but we can still look at some universal factors that will add or detract from an apology. Smith provides an outline for all the potential elements of an apology, which he calls the “gold standard” apology. They include: A corroborated factual record – offender goes over the wrongdoing Acceptance of blame Possession of appropriate standing Iden...

This week I wanted to explore the differences between men and women in getting what they want. This has direct implications for men and women in negotiation, and more broadly, in their careers. In reading about negotiation, it becomes apparent right away that there are different styles of negotiation which have different benefits and drawbacks. The two I will focus on here are collaborative/cooperative approaches, and aggressive/competitive approaches. I will then consider how these approaches are related to gender. A collaborative or cooperative negotiator generally wants a good outcome for themselves or their client, first and foremost, but is also concerned with fairness. This negotiator will therefore limit their own bargaining to a set of outcomes that remains fair to both parties. They look for win-win situations. 1 Relationships are also important to collaborative or cooperative negotiators. Mnookin discusses an accommodating approach, where negotiators often ...

The criminal justice system in Nunavut has been problematic for many decades. While the English based Canadian system is adversarial and considers crimes as infractions against the state, Inuit justice systems have always been inclusive and community oriented. In Inuit justice, the people involved are the offender(s), the victim(s), people supporting them, and Elders of the community. They try to address the issues surrounding the infraction, decide what can be done about it, initiate healing, and decide where to go from there. In traditional systems, any outstanding infractions affected the balance of nature and the availability of game. The system was a cohesive whole. (Travis Anderson & Mary Stratton, “The Civil Justice System and the Public, Justice for Nunavummiut: Partnerships for Solutions, Final Report” (June 2008) Canadian Forum on Civil Justice [“ CFCJ ”] at 15.) Presently, the criminal justice system in Nunavut is similar to elsewhere in Canada, save for a fe...

 It seems to me that the practice of law is changing. Perhaps it is my anthropological and social justice interest which places a more contextual spin on things, but I think it is also illustrated by the more recent move towards civility by bodies such as the Law Society of Upper Canada (LSUC) and the Advocates' Society.   LSUC reports that complaints about incivility, behaving dishonerably, and misleading the court made up 35% of complaints in 2008, up from 11% in 2004 (Philip Slayton, “There can be too much civility”, Canadian Lawyer (May 2010) online: Canadian Lawyer < http:// www.canadianlawyermag.com/There-can-be-too-much-civility.html>).  Additionally, there has been a push for more ethics and professionalism to be taught in law schools, which includes teaching civility. And finally, my optional upper year ethics course had two lectures dedicated to forms of zealous advocacy so that we could examine where to draw the line in how you promote your case as a...

For a possible solution to this issue, I would propose to both Scrat and Scratte that they should consider mediation. It is a reasonable first step to attempt to avoid the cost, time, stress, and win-lose outcome of litigation. Mediation is a voluntary process, so Scrat and Scratte would have to agree to it, as well as agree to a mediator. The mediator will not make their decisions for them, but will assist in the negotiation process by directing and managing the negotiation. Whether Scrat and Scratte negotiate for themselves or they have representatives, someone will be negotiating on behalf of each of them. T he outcome will not be binding unless the two decide to put any negotiated outcomes into a signed contract. This allows for a lot of flexibility, but will assist in controlling the parties' emotions by providing some ground rules, improving the quality and quantity of communication, and changing repetitive negative behaviour such as the behaviour we have observe...