2021

Difficulties arise when serious allegations or complaints of inappropriate behaviour have been made but little information has been shared.

Sometimes, we are called upon to facilitate or chair meetings that do not have settlement or resolution of conflicts as their purpose. They are not deal-making sessions or traditional mediations. Nevertheless, if such meetings are handled badly or sub-optimally, we may end up creating new and larger conflicts. If managed well, such meetings can be productive, engaging, and minimize negative escalation.

Lawyers often negotiate in the context of a mediation process. How do you use the mediator and the mediation process to maximize the value of the results for your clients? What approaches should you consider or take in approaching the negotiation table?

The Ontario Court of Appeal recently invalidated a mediation/arbitration clause used by Uber in its standard form driver’s contract (see case).

Note: This article was originally published on Slaw.ca and has been reprinted with permission from the author and from Slaw.

A recent study compared the costs and the effectiveness of four methods of resolving family law disputes, and found that mediation and collaborative law provide significantly higher value to disputants than arbitration and litigation in most cases.

I acknowledge, with respect, the Coast Salish Peoples and the First Nations Peoples of Treaty Six Territories.

One of the tools that can be very effective at generating flexibility from the parties in workplace mediations is the strategic use of BATNA (the Best Alternative To a Negotiated Agreement)1 to improve rational decision-making by parties in mediations. One’s BATNA in a negotiation is the best course of action that one can take unilaterally (without the consent or cooperation of the other side) if the negotiation fails to reach a resolution. In other words, BATNA is one’s Plan B.

In June, as part of a law school exchange program, I had the opportunity to study European Law at the EBS Law School in Wiesbaden, Germany. The courses were designed to educate students about the unique nature of European Union. Part of our education involved trips to the European Court of Justice in Luxembourg, the European Parliament and Human Rights Court in Strasbourg, and the European Central Bank in Frankfurt.

In the commercial world, lawsuits can take the focus away from the business, strain cash flow, and drain entrepreneurial energy. The longer the dispute drags on, the more damage there is to the enterprise.