February 2012 ADR Update

QB DECISION: Mahoney J refused to grant IBM’s application to waive the DRP provisions of the Rules in IBM Canada Limited v Kossovan. The court said: “The experience in this Court plus ample informed commentary suggests that requiring participation in an alternative dispute process leads to many settlements that would not otherwise occur.” “…the threshold for obtaining [exemptions] is high and parties can assume that they are used sparingly.” Wittmann CJ has heard 8 such applications this year and granted 4

MEDIATIONS: Recent work included business partner buy-out, charitable foundation disputes, multi-claimant limited insurance fatality, personal injury, lawyer negligence, real estate/Realtor dispute, and disability insurance claims.

ARBITRATIONS: include privacy, Key benefits of arbitration choice of decision-maker, quick access for interim directions by conference call, ability to limit pre-hearing procedures, relative informality helps preserve party relationships, and flexible hearing hours & location. Sample clauses: arbitration here. Consider naming a specific arbitrator in advance, rather than hoping to agree on one after a dispute arises.

Recent work includes commercial rent renewal, ice rink equipment & construction in Colorado, highway construction, residential construction, and partnership agreements. I have been appointed by the Minister of Natural Resources to chair a 3rd Pipeline Arbitration Committee under the NEB Act. I have been added to an ICDR list of arbitrators for franchise disputes. The Minister of Energy appointed me to the Imperial Oil Sands Dispute Review Committee.

WHAT’S BEEN SAID: Client Insight Inc. interviewed 10 counsel and/or parties with whom I recently mediated.  The feedback is valuable and appreciated. See the results here.

CONTINUING ED ACTIVITIES: The joint ICDR and IBA’s Arbitration Committee arbitration conference in New York in June with over 212 attendees from 29 nations. A seminar on Internet Sleuthing and Preservation of Electronic Evidence described electronic discovery, computer forensics and internet evidence among other topics. The AAMS 1.5 day 2011 conference—co-presented recent arbitration case law.

PUBLISHED/PRESENTED/SERVICE: Co-presented the panel Single Adjudicators: Who do you Talk to? at the 2011 Foundation of Administrative Justice Conference. Chaired full-day LESA (Calgary & Edmonton) seminars for lawyers new to arbitration practice. Co-presented at an AAMS Calgary luncheon on ADR in the Queen’s Bench. Appointed to the ADRIC Arbitration Rules Committee.

TECHNIQUES: Decision making is mentally taxing and, if forced to keep deciding things, people get tired and start looking for easy answers. (The Economist) This suggests that frequent breaks in both mediation and arbitration should yield better results.


Mediation rosters: ERCB, Pr. Court, Alberta Land Surveyors’ Association, General Insurance OmbudService

Arbitration rosters:  Portfolio Management Association of Canada, Institute of Chartered Accountants of Alberta Discipline and Appeal Tribunals, Alberta New Home Warranty Program, Canada Transportation Agency, Agreement on Internal Trade

Affiliations:  AAMS; Committees participant & former Director, ADR Canada; Chair, EIG Ltd.; IMI Certified Mediator

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