How we are Treated – The Fairness of the Procedure

“How we are treated—the fairness of the procedure—has as much to do with our satisfaction as the ulti-mate outcome.” (Sway: The Irresistible Pull of Irrational Behavior, Ori and Rom Brafman)

ARBITRATIONS: Recent work includes interpretation of unanimous shareholder agreements, commercial rent renewal rates, bridge construction, Insurance Act appraisal, joint venture agreement interpretation, partnership agreement interpretation, and debt recovery. Mediations within two recent arbitrations re-sulted in settlement and substantial savings to the parties. Section 35 of the Arbitration Act permits this.

The Supreme Court of Canada recently restored a decision of a Pipeline Arbitration Committee that I chair, with solicitor-client costs throughout. Apart from clarifying what costs a PAC may award, the deci-sion broadens deference given to adjudicators when interpreting their home statute.

Key benefits of arbitration include privacy, quick access for interim directions by conference call, ability to Key benefits of arbitrationlimit 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 Sample clauses: arbitration agree on one after a dispute arises. Mediation here. Mediation agreement here.

MEDIATIONS: The Rules of Court require good faith participation in a dispute resolution process (DRP) “involving an impartial third person” or a JDR (or Court annexed DRP or program designated by the Court—of which there are none). Mediations may be booked with minimal lead-time. Recent mediated cases include a major public works dispute, insurance coverage issues, and two personal injury matters resolved in under 30 minutes each. In December I mediated to settlement a matter between counsel re-siding in different cities over the phone.

CONTINUING ED: I will be attending the Western Canada Arbitrators Roundtable in May and the AAMS annual conference (and presenting) in April.

PUBLISHED/PRESENTED/SERVICE: I co-presented “ADR Options under the New Rules of Court” to the CBA Calgary Civil Litigation and ADR sections in October and again taught a section of the Dispute Resolution II course to second year law students at U of C in January. In November I co-presented “Arbitration and ADR Clauses in International License Agreements” to the Licensing Executives Society.

TECHNIQUES: We may benefit from consumer-related research when we negotiate. A recent study shows that people typically fail to realize that units of qualitative information are often arbitrary—the difference between 84 month and 108 month product warranties is the same as between 7 years and 9 years. Study participants responded more favourably to the 24 month difference than the 2 year difference. We focus on the number of scale units—higher numbers seem to represent bigger quantities (or offers?). The study authors found this “unit effect” vanished when people are reminded of the arbitrary nature of the unit!


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

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

Affiliations: Former President, AAMS; Committees participant & former Dir., ADR Canada; Chair, CPIX Ltd.

Tags :

Leave a Reply