Articles 2023

The case of York University v. Markicevic and why mediation matters.

10 tips on how *not* to sabotage your mediation.

"We're just being reasonable"; "Come on, be rational!"; "You're not thinking clearly!" Lawyers and parties often make or hear statements such as these in the course of litigation - especially when attempting to negotiate a settlement with the opposing side at mediation. Yet how do people really know when they are engaging in rational thinking?

When is a mediated settlement not a settlement? When there is a $7-million dollar dispute about what that settlement covers, and sufficient resources to fund an appeal to the highest court in the country. And why should mediators be appreciative of that litigation? Because it produced an authoritative primer on settlement privilege and confidentiality—legal concepts that contribute to the legitimacy and predictability of the mediation process.

In some jurisdictions across Canada and the United States, policy makers have suggested the implementation of a “good faith” requirement to ensure that parties will not frustrate the goals of mediation and will participate effectively. This paper will explore some of the pitfalls of a mandatory good faith requirement.

The prospect of the looming trial has, in most situations, become merely a backdrop against which parties generally settle their disputes. Mediation is often where the resolving of the conflict actually takes place, though not everyone supports this trend. Some critics raise concerns about whether mediation is in fact justice, as mediation is not expected to perform a truth seeking role, nor is it required to produce outcomes grounded in the legal rights and obligations of the parties.

In this article, I highlight five elements that I view as having the most significant impact on effective preparation for mediation.

Happy 2013 and here's to a prosperous year for all. After taking over from Barry Fisher as Chair in September, I had the pleasure of presenting Phil Epstein with the ADR Award of Excellence as my first official duty. I then spent a fabulous weekend in Halifax with ADR Chairs from across the country.