February 2013 ADR Update

QB ARBITRATION DECISION: A homeowner brought arbitration proceedings against a luxury homebuilder, and I issued an award. The builder then sued the homeowner to preserve a limitation period. The homeowner defended, counterclaimed and added a painter as a third party. He then argued that, because the builder attorned to the court’s jurisdiction, the court could re-open all the issues the parties put before the arbitrator. The courts said no, here.

QB ARBITRATION DECISION APPEALED after QB held here that a statement of claim amounted to notice of arbitration. Appeal hearing likely in the fall of 2013.

MEDIATIONS: Most mediations take a few hours. I have done some in only 20 minutes, and one, where defence counsel “did not see any hope of settling”, resolved in 75 minutes.

A recent 8-party mediation took a little longer. On day one we resolved the 6 third party claims (counsel & clients then departed). On day two we resolved the main claim. Why did it work? The third party contributions were “double-blind” to eliminate relational bargaining. The plaintiff knew no details of the third party contributions. The defendant knew only the total, and each third party knew only its own contribution. Try that without the help of a mediator who can hold all the information in confidence!

Even with the mandatory DRP Rules, my settlement rate remains in the mid-90% range.

NEWS: I am a member of the Western Canada Commercial Arbitration Society, “an informal assembly of some of Western Canada’s most experienced domestic and international commercial arbitrators.” I have been re-appointed to the discipline tribunals of the Institute of Chartered Accountants.

WHAT’S BEEN SAID: “That [mediation] was the most efficient use of time I have seen!” (Partner, defence counsel, Calgary)

CONTINUING ED ACTIVITIES: The ADRIC annual conference in Halifax was packed with great sessions. The AAMS 30th year meeting in Edmonton also had top notch presentations.

PUBLISHED/PRESENTED/SERVICE: Last fall I attended a graduate engineering course “Law for Project Managers” at UofC and taught the ADR module. I will be a course leader for the 7th annual Decision Writing course to be held in Calgary April 9 & 10. Details here. Watch for a LESA arbitration course this fall for lawyers new to arbitration. My time management presentation to the Association of Women Lawyers received “overwhelmingly positive feedback.”

TECHNIQUES: “Everyone can improve their negotiation outcomes by asking more questions and, thereby, receiving more data; while, at the same time, permitting the opposing party to tell his or her story and to feel heard.” George Adams

“Less happens in two years than you anticipated, but what happens in ten years is beyond your wildest dreams.” Tony Williams

“You cannot shake hands with a clenched fist.” Indira Ghandi

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