ADR Update Newsletter - March 2017

The Alberta Queen’s Bench has 19 vacancies. With judicial time prioritized for criminal and family matters involving abuse and children, there are no JDR dates available through June 2017 in Calgary or Edmonton. It’s a great time to engage in mediation and arbitration to resolve claims quickly and efficiently.

PRIVACY AND CONFIDENTIALITY IN ARBITRATION: Privacy is freedom from observation by others. Confidentiality refers to an obligation not to disclose information. A few years ago, an Ontario arbitrator ordered a hearing to be public. The circumstances were unique, but the procedural result serves as a warning to those who assume privacy.

Courts in Australia reject the notion of an obligation of confidentiality in arbitration, while courts in England strongly support it. Canadian courts have not resolved the Australian and English approaches.

Privacy and confidentiality agreements between arbitrating parties do not apply to witnesses and other non-parties. To maintain confidentiality, make satisfactory arrangements with non-parties. See here for a preview of an ADRIC presentation on the topic.

MEDIATIONS: A recent mediation held before questioning resulted in full settlement, saving the parties substantial legal expense, and making them very happy with their counsel. A 2-day construction mediation in Edmonton settled in the tens of millions of dollars and avoided a scheduled multi-day arbitration hearing. The corporate parties and their employees are now free to get on with their core businesses and will not have to spend hundreds of hours preparing for the hearing.

HANDSHAKES: With presidential handshakes in the news recently, consider this: research shows a simple handshake before a negotiation increases cooperative behaviour in two typical situations—where the interests of the parties are not completely incompatible, and also where they are antagonistic, with the parties’ interests in total opposition at the outset! See here for tips on effective handshake skills.

NEWS:  I have been accepted as a Fellow of the 175-member International Academy of Mediators.  • I received the Lionel J McGowan Award of Excellence for National Service at the ADR Institute of Canada’s annual conference in Toronto. The award recognizes “outstanding contributions to the support, development and success of the ADR Institute of Canada and to the promotion and development of alternative dispute resolution in Canada.”  • Alberta’s Minister of Energy appointed me to chair an Oil Sands Dispute Review Committee.   • The ADR Institute of Canada board of directors re-appointed me as a director-at-large.  • The ACQB appointed me as a claims officer in a CCAA proceeding.

CONTINUING ED ACTIVITIES:  The 2-day ADRIC annual conference in Toronto was packed with great sessions.  • The Western Canada Commercial Arbitration Society conferences in Calgary and Vancouver included presentations by top ADR practitioners.

PUBLISHED/PRESENTED/SERVICE:  Presentation (3-member panel) in Winnipeg on commercial arbitration processes, pitfalls, rules, and agreements to arbitrate.  • “Hot Topics” presentation (2-member panel) at WCCAS Calgary conference.  • Presentations to CBA ADR sections “Maximize Arbitration Benefits” (north) and “ADRIC’s Arbitration Rules—From Claim to Award in 12 Months” (south).

ARBITRATION RULES: The ADRIC Arbitration Rules, revised 2016/12/01, are available at I am on the Rules committee and will be pleased to provide copies and an overview of the Rules at your firm

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