Page 1

ADR Update

Fall 2012, Newsletter of the ADR Institute of Ontario With contributions from: ADR Atlantic Institute, ADR Institute of Saskatchewan, and Arbitration & Mediation Institute of Manitoba

Inside this issue:

President’s Message

1 ...... President’s Message 3 ...... “Mediator: A Life on the Edge of History” 5 ...... Safety and Security in Mediation 7 ...... Sibling Rivalry Gone Awry 8 ...... Announcements/Events 9 ...... Complaint Resolution for Union-free Workplaces 11 .... Circles Count! 12 .... Marketing Tip: Building Your Referral Engine 14 .... Third Culture – Creating a Climate for Successful Mediation 16 .... Specialty Interest Section (SIS) Meetings Does ADR reassure Reinsurers or do Insurers ensure this does not ensue? 17 .... Upcoming Specialty Interest Section Meetings 18 .... Classified Advertising

Ne wsle Newsle wslett ter Commi Committ tee Members: Colm Brannigan Brannigan, C.Med, C.Arb, mediate.ca, Ontario, Co-Chair Ken Gamble Gamble, C.Med, C.Arb, Early Resolution Inc., Saskatchewan La wr ence Herman Lawr wrence Herman, C.Med, Mediator and Conflict Resolution Specialist, Ontario James Musgra Musgravve , Q.C., C.Med, Cox & Palmer, Nova Scotia Jennifer Schulz Schulz, University of Manitoba, Faculty of Law, Manitoba The ADR Atlantic Institute, ADR Institute of Ontario, Inc., ADR Institute of Saskatchewan, Inc. and Arbitration & Mediation Institute of Manitoba, Inc. are regional affiliates of the ADR Institute of Canada. They are non-profit, private organizations established to provide leadership in the promotion of alternative dispute resolution for ADR professionals and users of ADR services.

Anne E. Grant, LL.B, LL.M. (ADR), C.Med, President

Autumnal greetings...

Ever since my school days, the advent of fall always signalled new beginnings and exciting prospects for learning. This is also true at ADRIO. I am pleased to report that over the summer, ADRIO staff and our section committees have been busy arranging seven evenings on specialized topics including: the workplace, family, insurance, restorative justice and facilitation. We urge members to become involved in section meetings – by webinar or in-person. Remember these section meetings are free to our members and can be reviewed at www.adrontario.ca/ resources/events.cfm In response to member requests, your Board held its September meeting in London, the forest city, along with a successful profes-

sional development program. At that meeting, the Board confirmed Kathryn Munn as our new VP. The Board also elected Michael Erdle as ADRIC Board representative. Congratulations Kathryn and Michael!! As part of our commitment to enhance member service and administrative efficiency ADRIO is also moving ahead with the approval of new technology for the ADRIO office. More on that to come. We are looking forward to meeting our provincial counterparts at this year’s national ADR Institute of Canada conference in Halifax at the end of October. ADRIC 2012 is your “Beacon to Best Practices” bringing together colleagues and ADR experts from across Canada to share critical insights and information that is not available elsewhere. To register, contact Rob Linkiewicz at 416-487-4733 x102. You will also find the brochure and registration form at www.adrcanada.ca Don’t forget to mark Wednesday, December 5, 2012 on your calendars for the ADRIO Meet and Greet - our annual evening of networking, discussion and learning. Before I sign off, I would like to Continued on page 6

ADR Ontario presents:

Meet and Greet - Table Talk - an Evening of Networking and Discussion - Emerging Opportunities in 7 Practice Areas HOLD THE DATE! Wednesday, December 5, 2012 - 5:30 pm to 9:00 pm Novotel Toronto Centre, 45 The Esplanade, Toronto All members and friends welcome! More details coming soon. www.adrontario.ca


ADR UPDATE FALL 2012

Board of Directors President Anne E. Grant, LL.B, LL.M. (ADR), C.Med Mediated Solutions V.P V.P.. P Prresident Elect Kathryn M. Munn LL.B., Cer t.ConRes., C.Med, C.Arb Munn Conflict Resolution Services Pas astt P Prresident Joyce Young, MSc., C.Med Joyce Young & Associates Ltd. Treasur er easurer Enzo Carlucci, C.A., C.B.V. Duff & Phelps V.P esenting Ontario V.P.. Repr Representing on the National Board Michael Erdle, C.Med, C.Arb Practical Resolutions Inc. V.P dvocacy V.P.. A Ad Barbara Benoliel, Ph.D., Preferred Solutions Inc. V.P tiativ es V.P.. P Prrovince-Wide Ini Initiativ tiatives Richard J. Moore, LL.B., C.Med, CFM, Cer t. Med. IMI, C.Arb MDR Associates Conflict Resolution Inc. Directors Roger Alton, C.H.R.P ., C.Med C.H.R.P., Just Resolutions Colm Brannigan, B.A., LL.B., LL.M., C.Med, C.Arb Mediation & Arbitration Services Pe ter Bruer, B.A. Conflict Resolution Service, St. Stephen’s Community House Cindy Dymond, B.A., LL.B., C.Med Barrister & Solicitor Resa Eisen, B.A., MSW Marathon Mediation Sander H. Gibson, B.A., B.C.L. C.Arb, MCI Arb. Sander Gibson Communications Inc. Anne Got tlieb, LL.B., LL.M. Gottlieb, Mediation at Work Ltd. Lorraine Jo ynt, MC A Joynt, MCA 3Pillar Alliance Kathleen K elly, B.Comm., LL.B., LL.M., Kelly, C.Med, C.Arb, FCIArb Kelly International Settlement Services Inc. Bunn arlane, C.Med unnyy Macf Macfarlane, SYZYGY Resolutions L. J. (L es) O’Connor B.A., LL.B. (Les) (Past President), WeirFoulds LLP Rober t Pidgeon, MA(ADR), C.Med, Clear Resolve Heather Sw ar tz, B.A/B.S.W., M.S.W., C.Med, Swar as Med.. (P (Pas astt P Prresident) Acc.FM, Cer t. F. Med Agree Dispute Resolution

Congratulations to the following Members who received their designation of Certified Family Mediator, Chartered Mediator, Chartered Arbitrator or Qualified Mediator: New C.Meds Dana Holmes, C.Med (ADRIO) Christopher Baines, C.Med (ADRIO)

2

New Q. Meds Rose Marie Campbell, Q.Med (ADRIO) Kim Ann Charest, Q.Med (ADRIO) Maureen Gregory, Q.Med (ADR Atlantic) Ken Hopkins, Q.Med (ADR Atlantic) Anna Kirovska, Q.Med (ADRIO) Mitchell Rose, Q.Med (ADRIO)


ADR UPDATE FALL 2012

“Mediator: A Life on the Edge of History” This title is a tribute to the late Ted Sorensen (1928-2010) former Counsel, Advisor and Speechwriter for President John F. Kennedy (JFK) (1917-1963).

Ernie G. Tannis, B.A., LL.B., C.Med, Acc. FM (OAFM) Solicitor and Mediator

Mr. Sorensen’s book “Counselor: A Life on the Edge of History”, published in 2008, addressed the origin of JFK’s famous quote from the Jan. 20th, 1961 inaugural address, “Ask not what your country can do for you-ask what you can do for your country”. He would never engage in inquiries again on the origin. If anyone were to question him on where the “Ask not…” line came from, especially in relation to Kahlil Gibran, he answered “Ask not!” For decades, the source of JFK’s phrase came under debate, whether it was original, plagiarized or influenced by previous similar quotes. One persistent question remained whether it came from something that the Lebanese-American poet, philosopher and artist, Kahlil Gibran had written long ago.

In this article, I will tell a story about how mediation guidelines were applied to seek to obtain necessary information from Mr. Sorensen for research I wondered if principled my on the negotiation may play a role in matter and support my resuming this conversation findings. Let me provide a brief background. In Dec. 2007, I was an attendee at a week-long conference on conflict resolution in the Middle East which traveled to various locations beginning in

with him...

Tiberius on the Sea of Galilee where an opening speaker ended his presentation with “Ask not..” phrase, attributing it of course to JFK. I approached the speaker and told him it was my understanding this famous line was drawn from something Gibran had written, but I did not know the source. He suggested to me, especially as a lawyer, that I ‘prove’ this thesis. So, I embarked on eighteen months of research. The academic details of what led to my literary/historical conclusion in the unraveling of the mystery surrounding this topic will be available when the Gibran conference proceedings are published this year. Mediators may be interested in the process on how the research was conducted and completed. The core point is the communications with Mr. Sorensen. When I emailed Mr. Sorensen at the New York law firm where he was Counsel, a reply came back from someone that I should read his book where he clearly stated that he would never engage in such inquiries again.

I was stumped, and frustrated. A thought came to me to go back to basics: I wondered if principled negotiation may play a role in resuming this conversation with him on a valued-based approach on getting past a stated ‘position’?

3


ADR UPDATE FALL 2012

These coincidences seem to evidence a growing ADR theme permeating all levels of society. I decided to seek to discover what Mr. Sorensen’s ‘underlying interest’ might be to transcend his position. In looking into his other activities, I discovered that he was the Founding Chair of the Advisory Board to Brandeis University International Centre for Ethics, Justice and Public Life. Willing to explore testing the frontiers of these negotiating principles, this time I emailed him at the Brandeis Centre, asking him if my probe might meet the objectives of the Centre’s intentions for ethics in history. To my pleasant surprise, Mr. Sorensen replied himself and asked what I wanted to know. After composing myself, I did manage to get not one but two more email questions answered by him. Without this information my research would not have been historically complete. At the end of 18 months I wrote an essay which ironically actually disproved the theory that Kennedy’s quote came from Gibran. This led me into a mediation-type approach with the John F. Kennedy Presidential Library to include Gibran’s similar but much different wording in their genealogy of quotes on their website. They have posted many similar quotes from writers from the West, and since both Kennedy and Gibran were both devoted to reconciliation of East and West, I felt that posting Gibran’s similar thinking from something he wrote in 1921 (in Arabic), particularly in these times, would manifest their common goal. In the fall of 2010 an Arabic translation of my essay appeared in a prestigious journal in Lebanon. The Reference Archivist at the JFK

4

Presidential Library indicated that if an independent English journal would publish my paper, they may consider my request.

I was privileged with the encouragement of the amiable and brilliant Professor Suheil Bushrui, Gibran Chair at University of Maryland in Hyattsville, and the support, among others, of respected poet and teacher, Mr. Henri Zoghaib, Director of the Centre for Lebanese Heritage at the Lebanese-American University of Beirut to present my essay to an inspiring four-day international conference on Gibran at the University of Maryland in May, 2012. After the presentation and academic review, it was determined that my conclusions on this issue were soundly based, scholarly and worthy of consideration by the JFK Presidential Library. The attendees at the conference were most interested in the communication principles and process that were applied to obtain the necessary information from Mr. Sorensen.

This experience has epitomized a journey in ADR. It’s ironical that this Gibran conference “Reading Gibran in an Age of Globalization and Conflict” and the ability to receive informa-

tion from Mr. Sorensen were based on mediation principles. At the same time I am honoured to be appointed recently as Advisor to the International Association for the Study of the Life and Works of Kahlil Gibran, an International NGO. These coincidences seem to evidence a growing ADR theme permeating all levels of society. This new advisory work on Good Governance protocols at the International NGO level is a timely extension of my activities in Canada working on programs for provincial and federal NGOs for Boards, their advisors, members and stakeholders. For Ted Sorensen, aging and in failing health when he responded to my inquiries, I wish to acknowledge his energy, courage, honesty and co-operation. He showed how he walked his talk in his role as Founding Chair of the Advisory Board to Brandeis University International Centre for Ethics, Justice and Public Life. He left an indelible re-establishment of my faith in the heartfelt work we all do as intervenors, in particular the role of seeking underlying interests to find common ground. I wish to say thank you Mr. Sorensen, for this legacy and reminding us, with one person, one issue at a time, that there is hope for the human family.

ADR Institute of Canada’s Annual National Conference; Join us in Halifax October 25-26 for ADR Canada's Annual National Conference

October 25-26, 2012 Halifax, NS This year's conference will take place at the Atlantica Hotel Halifax. Toll-free reservations: 888-810-7288, reservations@atlanticahalifax.com, or https://reservations.ihotelier.com/crs/ g_reservation.cfm?groupID=737677&hotelID=72818 Please visit our national website periodically for more details and registration form: www.adrcanada.ca


ADR UPDATE FALL 2012

Safety and Security in Mediation Mediator safety and security involves a range of considerations from mediator health and well being through to mediator safety from emotional and physical harm. Mediators spend a great deal of their professional time dealing in emotionally charged and potentially volatile situations. To be a safe and healthy practitioner requires a mediator to develop the appropriate skills, attitudes and behaviours to ensure that health and safety issues are always on the agenda. While mediator mental and physical health in a holistic sense is an important issue, this short article will deal only with issues of mediator and party safety from violence. Richard Moore, LL.B., C.Med, CFM, C.Arb, Cer t. Med. IMI

Unmanaged behaviour in mediation, pre-existing conditions of a disputant, or the physical environment of a mediation session, can promote the escalation of conflict and lead to a situation of danger for a party or the mediator. Additionally, the mediator can be put at risk by getting caught in the crossfire of verbal or physical abuse between parties. It is important for mediators to be vigilant in ensuring their safety by continually thinking about security and planning for safety. These considerations can be categorized into pre-mediation, mediation session, and post-mediation timeframes.

Convening the Mediation Session: 1.Screening for Potential Violence Prior to commencing mediation, most mediators will follow a discovery process to learn about the dispute – its context and history and the people involved. By doing a conflict analysis prior to mediation, mediators will begin to assess the elements of risk to both the parties and themselves. Some kinds of disputes, for example family situations, have a higher potential for violence than others. In such situations there are often specific protocols to follow to

screen for any potential violence. Depending on the definitions used, and the policy or ethics of the mediator or the program within which the mediation is undertaken, certain past actual or alleged conduct may determine whether mediation will take place at all. Obviously if the mediator finds that a party has been violent in the past, this will have a large impact on the mediator’s actions moving forward. Whether or not there are specific violence screening protocols, a mediator is well advised to have the parties identify past incidents of violence or, if no violence, the fear of violence. Such conversations between the mediator and each party should take place in private where each party can openly discuss the issue in the absence of the other party. In addition to previous acts of violence or the fear of violence, the presence of other abusive behaviours, or power and control dynamics, may create power imbalances that affect the capacity of one or more of the parties to mediate voluntarily, safely, and

fairly. The mediator’s screening process will determine whether the mediation should proceed at all and, if so, whether there should be some kind of customized mediation process to ensure safety of everyone involved. Once the decision to proceed has been made, other considerations follow.

2. Scheduling the Mediation: • Where will the mediation take place? If there are safety concerns, make sure that the room is not isolated, that there is easy egress, and that other people in addition to the parties and the mediator are in the vicinity. Consider using a room which has a window so someone outside the process can keep an eye on things. Should a door be left ajar? • When will the mediation take place? Don’t schedule it after hours when no one else will be around. Be careful about scheduling the mediation for after daylight. Take proactive steps to ensure that a colleague will be in the vicinity throughout the mediation in the event of

Now accepting Classified Ads — ask Janet for ad rates today! Please note: All ads are subject to Board approval. janet@adrontario.ca 416-487-4447 ext 105 or 1-877-475-4353

5


ADR UPDATE FALL 2012

trouble. • Who should attend? In addition to the parties, perhaps a friend, counsellor, advisor or other person should attend. This person could be someone who is able to provide some extra security or someone who, through his or her relationship with a party, is able to be calming influence. • Consider co-mediation.

3. Mediation Room Set-Up Physical arrangements of the mediation room can affect the dynamics and the outcomes of negotiations. In volatile or potentially volatile disputes, think about the following: • Use a table as a physical barrier between parties. • Maintain a safe distance between parties. This can include using a larger table and using a rectangular or square table as opposed to a round one. • Place the person who may be the victim of violence, including the mediator, closer to the door. • Ensure that there are no objects on the table that can be used as “weapons of opportunity”. Indeed in some cultures it is appropriate to tell parties to leave guns and knives at home. • Use separate waiting areas if possible. • Proper caucus rooms are crucial to ensure that there is privacy and that the parties do not “cross each other in the halls”. • In some situations it may be necessary for the mediator to have separate rooms for each party and to shuffle back and forth between parties, never letting them come in direct contact with each other.

Conducting the Mediation Session

By properly managing the emotional climate of the mediation, the mediator can greatly reduce the potential for volatility. At a minimum, mediators must

6

ensure that the parties do not leave the mediation session in worse shape than when they came in. It is hoped that the parties will learn to negotiate difficult emotional issues with increased self-control and respect for the other person. Mediators can help the parties manage emotions by opening up the lines of communication between the parties so that they can learn more about each other’s needs and perspectives in respectful ways and in a safe environment. It is much easier for mediators to prevent the parties from losing control than it is to regain control once it is lost. Mediators need to be directive and intervene immediately to deal with accusatory, blaming, critical statements. It is very important to be supportive and acknowledge the angry feelings before redirecting the destructive angry behaviour. Mediators must be well trained to help parties deal with strong emotions and must ensure that a safe environment is maintained.

Ending the Mediation Session

Careful coordination may be necessary at the end of a mediation session where the mediator is worried that one party may be subject to harm outside of the mediation room. A useful precaution is to have the fearful party leave the building first thereby allowing him or her to vacate the area without having to worry that the other party will be lying in wait outside the building. This procedure can be set up in caucus with the fearful party. The mediator can then engage the other party in conversation keeping that party in the building until the fearful party has vacated the building and gone to a place of safety. Even though a mediator may be

fearful for his/her own safety, it is often not possible for the mediator to leave the building before all parties do. The mediator must therefore take other precautions. For protection a mediator could consider being accompanied while leaving the building. In more extreme cases, a mediator should seek the assistance of the office security personnel or the local police.

Importance of Continually Thinking about Safety

Fortunately, it is uncommon for mediators or disputants to be victims of violence in mediation. On the other hand, it is important for mediators to consciously think about safety issues and to build this thinking into their professional practices. This not only guards the personal safety for everyone, it also increases the confidence of mediators, making them more effective professionally. Finally, such practices make the mediation environment more conducive to open and safer dialogue which, in turn, helps empower the parties to resolve their own disputes in more responsive and effective ways. Richard Moore, LL.B., C.Med, CFM, C.Arb, Cert. Med. IMI, is a mediator, trainer and ADR consultant. He has mediated many complex and volatile situations and has assisted many organizations in the development of mediation programs. Continued from page 1

thank Les O’Connor for his years of service representing ADRIO on the ADRIC Board. Well done Les! Enjoy the autumn colours. — Anne E. Grant, President P.S. To sign up for the new ADRIO Ethics Course “Practical Ethics for Working Mediators”, contact Brenda Lesperance at 416-487-4447 x 106 or brenda@adrontario.ca. Feedback has been exceptionally positive!


ADR UPDATE FALL 2012

Interesting Cases

Sibling Rivalry Gone Awry The Judge tapped his fingers on the bench a number of times and looked again at the parties before him and said, “I am really recommending that the two of you take advantage of mediation and spend some time with the mediator.” “But your Honour,” replied the plaintiff, “We did attempt mediation and it produced nothing.”

Christopher Baines, C. Med Christopher has been an OMMP mediator since 1996 and has spent the last four years as a mediator/coach in Small Claims Cour t with York University’s graduate ADR program. Currently, Christopher works as full time FSCO mediator with ADR Chambers.

The Judge looked puzzled and buried himself in the files and then looked up and said, “No, what you did was Pre-Trial Conferencing and that is not mediation. I am saying strongly that I think it is in all your interests to try mediation.” And with that he motioned with his eyes to the reporter from a major newspaper that was in the room. The reporter was there evidently because this was a high profile family where one brother was suing another for non-payment of a debt. No doubt this could be a juicy case for the “gentlemen of the press”. Well the penny dropped and the parties agreed – begrudgingly – and off they all went down the hall to the mediation room with me. This mediation was provided by York University’s graduate ADR program to Small Claims Courts in Toronto and Richmond Hill. I was the mediator/coach for the York mediation students who conducted the mediations, thus gaining valuable firsthand experience.

Once we were in the room we started the procby asking the No doubt this could be ess usual opening to the a juicy case for the question older brother, the “gentlemen of the press”. plaintiff. “Why are we here and what do you want?” “Well the older brother began, I lent my younger brother $15,000 four years ago and he hasn’t paid me back. I want my money.” The younger brother replied that

he had indeed paid back his brother in two installments but that his brother just didn’t remember. “Do either of you have any paperwork on any part of this like promissory notes, IOU’s or receipts?” I asked. As might be expected with families, there was no paperwork whatsoever – just people’s memories and we all know how reliable they are. The big brother railed about how he had sponsored his little brother and paid to bring him and the rest of the family over to Canada. He claimed he had a witness who would corroborate the loan and would also testify that no cash ever changed hands on the week the younger brother claimed to have made the payment. “But I have two witnesses that will swear to my story about at least one of the payments,” stated the younger brother. “Who is that?” the mediator asked. “My sister-inlaw and my mother,” he replied. “Fine. Then bring it on – let’s go back to court,” said the big brother. He knew his case was justified and he wanted the court to order his brother to see it his way. Time for a caucus! When we were alone I asked the big brother, “What do you think the Judge will think when your own mother and sister-in-law testify that you are not telling the truth? And what will that reporter write in his newspaper?” Big brother thought about this and suddenly realized that perhaps the mediation process was

7


ADR UPDATE FALL 2012

worth more time. After much back and forth – and with some creative suggestions – we were pleased to see this case resolve. Family relationships are always worth going that extra mile and this family had serious relationship issues that would require many more experts in different areas to help. But we were in the room with an immediate challenge of public scrutiny or perhaps even humiliation should their story get out. Both brothers could see this and their mother also weighed in about the possible shame of this fight going public. So how to save face for both parties and save the family embarrassment? The beauty of the mediation exercise is that creative solutions can arise after common brainstorming (and pressure). In the plenary the parties tossed out a number of possible solutions and the big brother casually mentioned all his costs-including his kids’ tuition. That little tidbit was pure gold! “Let’s caucus again,” said the mediator. After a heart to heart with little brother a new option arose. Little brother agreed to give his big brother “voluntarily” $5,000 – “in order to preserve family harmony.” In addition, he would “donate” $1,500 to the university fees of each of big brother’s two children. Big brother acknowledged his generosity towards his kids and thanked him for that. He stated that as the older brother, he was willing to “suck it up” on behalf of the family. The atmosphere within the room noticeably improved and even a few smiles broke out, on all sides. Walking back into the courtroom with a deal seemed to please everyone but the reporter who missed out on an amazing – but private – tale.

8

ANNOUNCEMENTS/EVENTS Upcoming ADR and Affiliates Events, Training and Professional Development Opportunities EVENTS The ADR Institute of Canada presents: ADRIC 2012: Guiding Beacon to Best Practices in ADR October 25 – 26, 2012 Halifax, NS Pre-Conference day, October 24th: Marketing Your Practice Please find flyer and registration form at www.adrcanada.ca. ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○_______________________ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

The ADR Institute of Saskatchewan presents a two-day facilitation training program: Facilitating with Ease, November 15-16, 2012, at the Ramada Hotel, Regina, SK. Deadline for registrations: October 31, 2012. Please find brochure and registration form at www.adrsaskatchewan.ca. ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ _____________ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

The ADR Institute of Ontario presents: Civil Procedure Workshops Sat., Nov 17, 2012 with Warren Morris ADR Institute office, Toronto - 9:00 am to 4:30 pm Visit www.adrontario.ca for details and registration form. 2013 dates: Sat., Jan 26, 2013 with Gary Furlong Sat., May 25, 2013 with Gary Furlong ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○_________ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

The ADR Institute of Ontario presents: Meet ‘n Greet - Table Talk - an Evening of Networking and Discussion - Emerging Opportunities in 7 Practice Areas, Wednesday December 5, 2012, Novotel Toronto Centre, 45 The Esplanade, Toronto - 5:30 pm to 9:00 pm. All members and friends welcome. Program details to follow. www.adrontario.ca ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

COURSES ADR Institute of Ontario

Practical Ethics for Working Mediators Online Course (for members of ADRIO only. Will be available to other affiliates in early 2013). Registration deadline for Course Window 3: November 23, 2012 To register, contact Brenda Lesperance, 416-487-4447 x 106 or visit www.adrontario.ca for details and registration form.


ADR UPDATE FALL 2012

Complaint Resolution for Union-free Workplaces A method to deal with complaints in the workplace is a necessity for most workplaces. In theory, having a process in place to prevent issues from “snowballing” out of control and to ensure harmonious employee relations is a sound organizational practice. Individuals who have lingering and unresolved work-related complaints could have a profound and detrimental effect on the culture of an organization. When there is no procedure in place to field complaints properly and in a timely and effective manner, individual’s concerns/ complaints are left to fester until they finally erupt like a volcano. There is a direct correlation between disgruntled employees and lack of productivity, absenteeism, and negative staff morale, which can ultimately have dire consequences on the well-being of an otherwise sound organization. The process of submitting a grievance (also known as a complaint) in a unionized workplace is enshrined in a contractual document between the organization and the union. This contract is known as the collective agreement. The question is, if an organization is not represented by a union, then what is the process to submit a complaint? This is the central theme of this article.

Marcel F aggioni Faggioni aggioni, B.A. (Hons), CHRP, MIR, Q.Med acquired his work experience in the federal and provincial governments, in the health care and social services sectors and in the construction industry and has held various senior management positions in the field of human resources and labour relations. In April 2008, Marcel successfully achieved his paralegal designation and was granted membership to the Law Society of Upper Canada. Since 1994, he has completed extensive training in both mediation and arbitration and is former Vice-Chair of the Sudbury and Region Mediation Association. Recent and continuing effor ts under taken by his firm, Integrity Management Consulting Group, include restructuring and cos t ef ficiency ini tiatives, organizational development and the design of alternative dispute resolution systems.

An internal complaint resolution ...all parties involved in an procedure is a internal complaint resolution good process for dealing with system have a vested complaints for an organization interest in the solution. whose staff are not represented by a union. It also rushing off to court or proceeding makes sense from an employee to deal with their work-related relations perspective. By giving complaints in an unproductive employees a procedure by which manner. they can tender their concerns/ Another positive aspect of institutcomplaints, the organization may ing an internal complaint resolube able to prevent them from

Wayne Scot t, B.A. in Sociology as well as a Scott, cer tificate in Labour Studies from Laurentian University. Additionally, he has graduated from Cambrian College’s post-diploma Human Resources Management program, where he was named to the President’s Honour Roll for both semesters. Having comple ted the required coursework, he is now working toward attaining a CHRP designation and will be writing the National Knowledge Exam in October 2012. He is a member of the Human Resources Professionals Association, and has a firm understanding of both unionized and non-union workplaces. Wayne has work experience in a broad range of industries from construction to insurance and has a proven track record for success having been recognized with awards in sales, customer ser vice, and safety. He is a ver y effective communicator with strengths in problem solving and critical thinking and enjoys meeting the challenges that face human resources professionals in today’s complex world of work.

tion system is that it can often result in a more organizationally appropriate solution to a workplace issue than a complaint being resolved in the courts or in arbitration. Employers and employees unquestionably have a more intimate understanding of the particular workplace than would an adjudicator. Combine this with the fact that all parties involved in an internal complaint

9


ADR UPDATE FALL 2012

resolution system have a vested interest in the solution, and it is reasonable to conclude that an internal method will provide a solution that is sensitive to the organizational circumstances as well as acting in the best interest of all parties. An internal complaint resolution policy has specific elements that need to be included and various matters that need to be considered. It needs to outline the internal complaint resolution procedure. Examples might include the types of disputes covered by the policy, steps to follow when addressing complaints (usually four steps, outlined in a moment), and persons to go to with complaints, including alternates in special circumstances. These obviously only represent a few elements contained within a complaint resolution procedure. Specific considerations that need to be accounted for when designing an internal complaint resolution policy are that some organizations limit the subject matter of complaints. Then there are those organizations that leave it wide open to any work related complaint. For most organizations with such procedures, their complaint resolution policies involve four basic steps. The first step typically involves informal discussion between the aggrieved employee and the person directly concerned, or the immediate supervisor. It is not unusual for some policies to require the submission of a written complaint and a formal meeting right from the onset. The formality of the first step depends on the management style and organizational culture of the company/employer. In the event that the employee feels that their concerns have not been adequately addressed, the second step would see the com-

10

plaint forwarded on to the next level of management, perhaps the Department Head. If the employee is not yet satisfied with the results of step two, then the complaint is escalated once again to a higher level, perhaps the Director of Human Resources. Finally, if the complainant is not satisfied that the matter is resolved the fourth step would see the matter investigated by the Chief Executive Officer or designate, a committee of the Board of Directors, or a neutral third party. As the complaint progresses through the steps, the complaint procedure becomes more formal. This is one cursory example of how a complaint procedure could be structured and is by no means the only option. Internal complaint resolution policies and procedures should be tailored to the organizations that they serve. As important as having an internal complaint resolution policy, is ensuring that within it there is an anti-reprisal clause. When introducing a system that allows employees an avenue to voice complaints, the fear of being punished for lodging a complaint is a natural one. It must be ensured that employees will not fear lodging legitimate complaints or the system renders itself inefficacious. The inclusion of a clause stipulating that employees have the right to lodge complaints without reprisal is essential to creating an effective resolution system. By the same token, the system should discourage the lodging of vexatious and frivolous claims. To prevent such claims to be filed, the policy should speak to the possible consequences if such a finding is made. An internal complaint resolution policy does not only serve the needs of employees but employers as well. Having policies in the workplace that provide methods

of keeping a harmonious workforce can only be to an organization’s advantage. The grievance procedure provides some diplomacy in dealing with sensitive matters within the workplace. Developing an internal complaint resolution policy in a union-free workplace can provide a constructive avenue for employees to voice their complaints/concerns and truly feel that they have been heard. As a final point, it should be noted that if an organization’s internal complaint resolution procedure can help to avoid one incident of litigation, then the organization has, in fact, realized a financial benefit. The average lawsuit in Canada comes at a cost of $40,000 and is resolved in an average of approximately three years. Couple this with the fact that most litigation is settled out of court and it is hard to comprehend why all organizations have not yet implemented an internal complaint resolution policy.

Attention Newsletter Contributors Deadline for Winter Issue November 2, 2012 Just a reminder, submissions: • Should be no longer than 1,000 words in length • MUST be submitted in WORD (not PDF) • MUST be accompanied by the author’s short bio and high resolution photo with contact information janet@adrontario.ca


ADR UPDATE FALL 2012

Circles Count! Mediators seeking accreditation can now count circle mediation cases towards their Q.Med and C.Med designation. The Board of the ADR Institute of Canada passed a resolution to this effect at their June meeting. This provides mediators seeking accreditation with a new path towards that goal.

Joyce Young, MSc., C.Med, is an Accredited Family Mediator with the Ontario Association for Family Mediation and a Child Protection Roster Mediator. She is PastPresident of ADR Institute of Ontario

Circle mediation is used in family and child welfare cases, in the workplace, in youth criminal justice cases and in elder care matters. It is particularly effective in cases involving up to twelve disputants or stakeholders. For example, a family mediation that requires parents, their new partners and grandparents to be present would benefit from the circle process. In the circle process we consider who needs to be involved in order to implement a mediated solution. If new partners or grandparents are influential, we include them in the circle. In the workplace, circle mediation is used to deal with complaints against a supervisor, allegations of harassment and re-aligning a dysfunctional team.

Circle mediation builds in support for all participants. It approaches power In the circle process we imbalances by involving consider who needs to be a support person or involved in order to implement advocate for the less a mediated solution. powerful party. If a youth is involved, he or she would identify one or two support people to participate in the circle mediation. The circle mediator also provides support, empathy and acknowledgement for all participants.

Another unique feature of this process is that some of the participants may change from one meeting to the next. I recently mediated a child protection case involving a youth and his parents. At the first meeting it became clear that the parents were struggling to accept and understand their son’s addiction and treatment protocol. I made that observation and asked what might help them. The group agreed to invite the youth’s addiction counselor and a peer from his treatment program to the next meeting. Circle mediation begins with a face to face meeting with each of the key participants. The Agreement to Mediate is signed and I answer any questions about the process. I then ask the client to tell me about his or her situation and the issues for mediation. I ask the client about their preferred solutions and what solutions the other parties might find acceptable. I want the client to leave this meeting with a focus on the future and on potential solutions. When the parties come together, I begin by asking them, “What can we do to help us have a good conversation today?” Participants respond, one at a time, in the sequence of the circle. I may then pose a question on a circle value, such as respect: “What does respectful behaviour look like to

11


ADR UPDATE FALL 2012

you?” When it’s my turn, I summarize what has been said, and pose the next question: “What would you like to talk about today?” I find that when people speak in sequence, they listen attentively because they aren’t busy looking for a chance to jump into the conversation. Because they listen attentively, they give agency to the client who is speaking. Because the conversation moves slowly, clients have a chance to reflect on what others have said, and they are influenced by it. In this way, the sequential conversation moves forward, with the circle mediator summarizing, giving support and empathy, and posing the next open-ended question. It is very much a participant-driven process. The clients generate the guidelines, generate the agenda, generate the options, select an option and make a plan for implementing those solutions, if they are ready to do so. I find that when clients are given this responsibility, they feel empowered to take charge of their situation. When parties reach agreement, they put it in writing and sign it. I often close the circle by asking, “How do you feel about our conversation today?” Then, “Is there anything else you would like to say before we close the meeting?” From this I will learn whether we need another meeting. Participants often refer to a shift in the relationship with others. In the child welfare case I mentioned above, in the closing round the youth said, “I think mom and dad are starting to understand that I’m working really hard to beat my addiction, and it’s really hard work.” To learn more about circle mediation and training please visit my website at www.joyceyoungmediator.com.

12

Marketing Tip: Building Your Referral Engine As we’ve said repeatedly, people do business with people they know or people their friends and family know.

Michele Gibson is an Atlanta, Georgia-registered neutral, cer tified emerging media consultant, author and speaker. She is the president of Digital Smart Tools, LLC. She will be speaking at ADRIC 2012 and offering a full day, preconference marketing seminar. Phone: 404-5923367 E-mail: mgibson@digitalsmar ttools.com

The referrals you get come principally from the people who know you well and who have seen you in action. How do you ensure that you keep getting those traditional referrals? • Say “thank you” for every referral you get even if you don’t manage to close the business. Thank you is the most underused phrase in the English language, and anyone who takes time to use it stands out from the pack. • Refer business to others! The fastest way to turn people into power referrers is to refer business to them. Think you don’t know about opportunities for others? Think again and start listening carefully in every conversation. You’ll be surprised how many opportunities you stumble across that you can use to remind others that you’re thinking of them. People who benefit from your referrals will

become your biggest business boosters. • Make sure your friends and family understand what you do for a living. How many times have you said you are a mediator, only to have people ask questions that show that they clearly don’t understand what a mediator does? Take time to educate others – once they understand exactly what you do they’ll be able to refer appropriate business to you. While face-to-face marketing is valuable, most people find that they can get more referrals if they ramp up their digital marketing engine. Prior to doing this there are several items that need to be in place: • Your website needs to be up, rank well, and provide all the information needed by someone looking to hire a mediator, including a scheduling link. • All your marketing collateral (website, brochure, business cards, etc) needs to have a common look and feel. • You need a system in place to be able to track the lead source and be able to say “thank you.” • You need a business presence in the social media environment that is most appropriate for your prospective book of business. If you market to other professionals, then you need to be on LinkedIn, but if you market to end users, then Facebook is a better environment. If in doubt – join both. • You need to build lists of prospective contacts and referrers


ADR UPDATE FALL 2012

with e-mail addresses. It is important in the beginning to separate these e-mail addresses into lists that will allow you to send targeted e-mails. For example, if you are going to market to attorneys, you might want one list for those who do divorce work and another for those who do personal injury work. Once your foundation is in place you can now start the tough work of getting your name out there in front of your potential referrers!

Social Media Marketing Let’s start with social media marketing. The biggest misconception that we see here is that people think they are supposed to hang out their virtual shingle and by “advertising” people will flock to them. Nothing could be further from the truth. The objective of a social media campaign is to get people to recognize you as a trusted expert in your field…it is not to stand up and yell “hire me!” How do you achieve this recognition? Post at least 1 link per day to an article in the press about mediation or an affiliated topic. In the past we would all forward interesting articles to a couple of friends. Today by posting it to your social media page, all of your friends will see it at the same time. If you make that posting prior to 9 a.m. you’ll actually get a 20% higher read rate than you would if you posted it later in the day, because most active social media users check their accounts first thing in the morning. But you say, all of my friends know what I do….what good does it do to remind them ? Well, all of us are busy, so a little reminder never hurts. But the reality is that you’re really not trying to reach your friends. You’re trying to reach THEIR FRIENDS. Take Starbucks for example. They have 23 million facebook fans. These are typically dedicated customers who are

thrilled to hear about a new seasonal beverage or get a coupon for an occasional discount. However the more important number is 690 million….that number is the number of friends that the 23 million facebook fans have. If only 10% of those 23 million fans “share” a posting from Starbucks on Facebook then Starbucks will have reached 100 million people! Consider what happens if 10% of those people repeat the behavior – suddenly you’re reached a huge number of prospective consumers, and all you had to do was post one comment that your fans thought was sufficiently interesting that they chose to share it. Now clearly your numbers won’t be as big as Starbucks’. But if you spend a little time linking to your friends and colleagues on Facebook and LinkedIn, you’ll probably find you have a couple of hundred contacts, and you’ve now got a method to reach them all quickly.

Newsletter Marketing Similar to social media, newsletters give you a way to do the work once and reach hundreds of people with a couple of keystrokes. We’ve written about the mechanics of publishing an electronic newsletter in prior issues (that are available in the GODR archives) so I won’t get into the mechanics of developing a newsletter. But I do want you to consider several points: • Even if your recipients don’t open your newsletter, they’ll see your name in the subject line and be reminded that you are a mediator • If there’s one catchy / interesting article in your newsletter, then you’ve increased the chances that your recipients will forward this vehicle to their friends and family • If the newsletter is easy to read (we recommend 2-3 teaser

sentences with a link to the full article) the chances are better that people will continue to read it every time you publish. • Correctly written, a newsletter will allow you to track the trends in your audience, which will help you focus your practice in areas where there is more likely to be work • A good newsletter will allow the reader to easily link to your website to get more information about you, contact you, or schedule a mediation.

Push vs. Search Just a few years ago while the economy was still relatively healthy, businesses were spending the bulk of their time optimizing their websites so they could be found easily in a search. However once the markets crashed, people stopped spending time aimlessly searching and more time trying to keep their heads above water. Therefore we’ve now seen a dramatic move to push media. By definition, push media are those media streams that push content to users once they have established a connection with you. Both social media and newsletters / email are examples of push media. Once someone has connected with you on a social media platform they automatically get your posts…and once they’re on your mailing list they automatically get your mailings. No further action is required on their part. While they may not read everything you send, you’ll remain in the front of their mind and make it easier for them to refer their friends and family to you when a need arises. Referrals are the heart of your practice. Take the time to develop your infrastructure and spend a few minutes each day, week, and month to push out quality content. And you’ll find that your phone is ringing and your calendar is full.

13


ADR UPDATE FALL 2012

The Mediator’s Toolkit:

Third Culture – Creating a Climate for Successful Mediation By: David Aschaiek Karen Ekstein, MBA, Ph.D. (author) assisted David Aschaiek with this ar ticle. For: www.themediator.ca This is the second in a series of three ar ticles. Part one appeared in the Summer 2012 ADR Update Newsletter.

In “Cultural Competence – Transcending Culture Differences in Mediation,” cultural competence was described as an indispensible capability in a mediator’s toolkit. Cultural competence was presented as the ability for a mediator to not only identify, acknowledge and explain cultural influences on parties within a dispute, but to also transcend the cultural differences in a way that serves the dispute resolution process. Effectively, cultural competence involves a mediator’s ability to navigate cultural factors that are present in and bring to bear on a dispute and its resolution. A mediator aims to find a common ground across disputing parties with respect for and in spite of their cultural differences, and this common ground serves as a platform for resolving a dispute to optimize satisfaction of disputing parties. Therefore, a mediator’s cultural competence is essential for the mediation process and can make the difference between the success or failure of mediation. While cultural competence is inarguably critical to successful mediation, it is not the only capability a mediator should have in his or her toolkit. A number of years ago, an interesting article was

14

Smith (1996), who claims that: “intercultural exchanges are commonly assymetrical because of unrelated sets of expectations and definitions.” If communication represents a purposeful ‘coming together’ of people with different cultural heritages, a key question is how to achieve the purpose of a communication productively, in spite of differences that have implications for communication effectiveness and success? To Casrnir (1999), ‘third culture’ represents a bridge between parties in a communication that enables parties to communicate productively. He defines third culture as: “construction of a mutually beneficial interactive environment in which individuals from different cultures can function in a way beneficial to all involved” (Casrnir, 1999, p. 92).

published in the International Journal of Intercultural Communication by Fred Casrnir. In the article, Casrnir (1999) introduced the ‘third culture’ and described what it is and how it influences communicative instances. Imagine a case in which two parties try to communicate. Each party has a unique cultural heritage that they bring to an interaction and this cultural heritage shapes their assumptions about and expectations of a communicative endeavour. Since parties in a communication bring different cultural heritages with them to an interaction, it is possible, if not ...a mediator’s cultural competence likely, that the parties will have is essential for the mediation different assumptions surrounding process and can make the and expectations of the communidifference between the success or cation. As might failure of mediation. be expected, different assumpAn important question, however, is tions and expectations open the whether parties in a communicadoor to miscommunication, tion are even capable of achievmisunderstandings and conflicts. ing objectivity that is necessary to In his article, Casrnir (1999) cites


ADR UPDATE FALL 2012

foster a third culture. It might be suggested that the cultural characteristics of an individual are so deeply ingrained that an individual may have trouble attaining the level of perspective that is required to understand how their individual cultures affect their assumptions and expectations as well as the communicative relationship and the communication effort. Furthermore, achieving the necessary level of objectivity and perspective to foster a third culture would presumably be particularly difficult in the case of a culture clash between communicating parties. The relationship between mediation and fostering a third culture is possibly becoming a bit clearer. As has been suggested, culture clashes between communicating parties are often the sources of conflicts and disputes. Yet, overcoming culture clashes can be difficult for disputing parties because a level of objectivity is necessary to do so. In a dispute, the parties are frequently unable, if not unwilling, to develop objectivity and even empathy that is necessary for the parties to arrive at a satisfactory resolution to their dispute. The inability or unwillingness of disputing parties to find a common ground upon which to build positive communication and understanding – or a third culture – is what leads these disputes to require outside intervention. In other words, the outside intervention is used to foster a foundation

for communication about a dispute that will lead to its resolution. Not surprisingly, there are two approaches to seeking outside intervention that will assist in fostering a foundation for communication about a dispute to lead to its resolution. It should be clear that one approach involves litigation and one approach involves mediation. Within the context of litigation, individuals rely on lawyers to act as extensions of themselves that will often reinforce and justify a disputant’s position and interests; this is frequently an adversarial approach that may result in perpetuation of culture clashes and reinforcement of cultural differences for the purposes of ultimately designating a winner and a loser. Or, in the case of litigation, culture might be ignored altogether, while the legal interpretation is privileged above the disputing parties, their interests and their cultural characteristics. Mediation, however, relies on a different approach, central to which is the mediator’s effort to build a third culture à la Casrnir (1999). Thus, the mediator – an impartial or neutral party – identifies and respects cultures presented in a dispute and seeks to understand impacts of cultural differences on a dispute. However, a mediator aims to transcend cultural differences by fashioning a space – a third culture – wherein a mediator fosters productive communications – communications that

Arbitration and Mediation Handbooks These two useful guides are excellent reference manuals for ADR practitioners. Those wishing to supplement their training will find them to be an invaluable educational resource. They are also superb primers and a great resource to familiarize anyone wishing to understand the arbitration and/or mediation process in a commercial or business context. To Order Call Mena: 416-487-4447 or 1-877-475-4353 mena@adrontario.ca

move disputing parties towards a mutually satisfying resolution to a dispute. So, the key question that then arises is how a mediator might fashion such a space? A key contention of this article is that a combination of a mediator’s professional training and cultural competence are critical for fostering a third culture. A mediator’s professional training values a conciliatory, agreementfocused approach to dispute resolution which, in essence, privileges neutrality and aims to optimally satisfy all involved parties. Cultural competence, as described in the Cultural Competence article, involves a mediators’ ability to identify and respect cultural differences manifested in a dispute and to navigate the differences in a way that allows all parties to feel understood and valued. To conclude, this article suggests a new perspective, or frame, for understanding the role of a mediator. This article submits that a central responsibility of a mediator is to foster a third culture, wherein dispute resolution efforts can be undertaken productively and effectively. By combining professional skills that the mediator develops in mediation training and the cultural competence that a mediator must seek to uncover, if not develop in his or herself, a mediator is naturally equipped to create a third culture. In effect, it would seem that there is a natural fit between mediation and productive and effective management of communicative endeavours, with or without a conflict dimension, built on a third culture model. As a result, it is within a mediator’s interest and power to recognize, realize and to benefit from that fit in their own mediations and in a way that assists clients to realize their communication goals. Copyright (c) 2011-, TheMediator.ca Not to be reproduced without permission of the copyright owner.

15


ADR UPDATE FALL 2012

ADRIO’s Specialty Interest Section Meetings (SIS)

Specialty Interest Section (SIS) Meetings are held at ADRIO’s offices and via webinar one or two evenings a week from 5:45 – 7:30pm. They are free to members and feature topics and speakers of great interest to ADR practitioners. Sections include: Construction, Environmental, Estate Mediation, Facilitation, Family ADR, Family Arbitration, Franchise, Insurance, IP and IT, Public Conflict, Restorative Justice and Workplace. Ben Drory is an ADR Professional with ADR Chambers, and a member of and volunteer writer for the ADR Institute of Ontario.

For upcoming Specialty Interest Section Meetings, please see page 17. September 12, 2012

Does ADR reassure Reinsurers or do Insurers ensure this does not ensue? By: Ben Drory

The ADR Institute of Ontario’s (“ADRIO”) Insurance Section presented a live program and webinar by Mr. Linden Rees and Mr. Rohit Trivedi on the topic of “Does ADR reassure Reinsurers or do Insurers ensure this does not ensue?,” on Wednesday, September 12, 2012 at the ADRIO office in Toronto. Mr. Rees began with a brief overview of reinsurance. Reinsurers insure insurance companies—doing so spreads risk, and reduces the risk potential that insurance companies face. The trade-off is that the insurance companies also get to keep less of their premiums. Reinsurers even reinsure themselves. It is a highly complex and technical area. When disputes related to reinsurance arise in Canada, reinsurance contracts provide for arbitration. However, there is a feeling that the ‘good old days’ are gone in the industry. Reinsurance arbitration has become extremely cumbersome and expensive, reflecting a need for regulation. Over time, disputes have become more contentious and litigationlike, creating less satisfaction for all parties. However, mediation is not accepted in the industry. Why don’t ADR practitioners get a call? And why is there still so much resist-

16

ance to the use of mediation? A 2004 report out of the European Union suggested that the reinsurance dispute resolution system was ripe for cost savings, and recommended a mediation system including time limits, practice codes, mediation standards, and protocols and practices. It is notable that there is strong interest in reinsurance mediation in the London (England) market, and it has also proved effective in Australia. A poll there found that 63% thought mediation had been “somewhat effective” or better. Mr. Rees suggested that reinsurance companies ought to replace their arbitration clauses with mediation clauses, with arbitration becoming the backup procedure, and that ADRIO can take a leadership role on this. To convince reinsurers to participate in issues of this nature, mediators would have to be fully educated in this area. The best approach to reinsurance mediation would be a mix of qualitative and evaluative—so that where it fails, the mediator would be able to issue recommendations; this tends to concentrate the parties on solutions, as they are on the verge of large liabilities. The typical parties to mediation here would likely be highly professional and sophisticated, and also highly flexible. Mr. Trivedi noted that the arbitration clauses in reinsurance contracts are intended to resolve differences without litigation. The goal is to judge based on a strong knowledge of the reinsurance business and practices— arbitration panellists typically have a

tremendous reinsurance background. The effect of the “honourable engagement” aspect of appointments is that arbitration goes beyond merely analyzing legal obligations here, but must also be based on current reinsurance market practice. The process is governed by contract, but difficulties arise when the scope of arbitration is not clearly defined. Common disputes include late reporting; the nature and number of occurrences or “events”; misrepresentation; and environmental issues. The nature of defining what constitutes an “event” (for example, the World Trade Centre disaster, or a war) can create complicated coverage issues. A drawback of current arbitration practice is that it can go on for years, whereas mediation might resolve in a day or two and streamline the process. An extensive Q&A session followed the presentation. Mr. Rees felt that mediators would have to demonstrate justifiable expertise in this sub-specialty, indicating equal or greater knowledge about the reinsurance process as that of arbitrators. There are few mediators who know the Reinsurance world really well—there are highly specific language and issues involved. Capability merely as a ‘mediator’ would be insufficient to demonstrate the relevant expertise in this field any more than experience as a ‘manager’ would qualify one to manage in a completely different field— mediation experience would similarly be subordinate here to the subject matter knowledge itself. Reinsurance is an amazingly complex and highly technical area,


ADR UPDATE FALL 2012

ADRIO’s Specialty Interest Section Meetings (SIS) with a small community of professionals. The number of reinsurance arbitrators in Canada is very small—probably less than a dozen. These individuals cannot possibly be around forever, and they will also inevitably be conflicted out of eligibility for many disputes. There was some debate over the size of this potential market—Mr. Rees felt it is potentially massive, in terms of quantum in dispute, as the magnitude of reinsurance claims typically dwarf those from primary insurers, although an audience member felt it would still be, on a “per case” basis, a fairly small market, and probably less lucrative than the arbitration work. Still, it was agreed by all that there would only be a small number of mediators in the area, and that it could potentially fill a gap, as several models are currently working in other countries. If it can work there, why couldn’t it work here? If you have the skill set, you could be one of the first ones in, and mediation could expand within the industry because of its lower cost relative to arbitration. But right now there is nothing being done on the matter—such that even an initial phone call to commence a discussion with the reinsurance industry would be an enormous step, to establish if there is any real interest in a test run, and go from there. But it has to be fronted by ADRIO to have any chance of being successful. There was a consensus in the room that the presenters and attendees would like for ADRIO to approach the industry (including the Reinsurance Research Council of Canada) to promote the benefits of mediation, and inquire on the potential size of the market and how it could work in the reinsurance context. Linden Rees is a former Senior Claims Manager and the former President of Underwriters Fraud Control Inc. and National IME Centres Inc. Rohit Trivedi is Vice President of Claims with Axis Reinsurance Company.

Upcoming Specialty Interest Section Meetings

The ADR Institute of Ontario presents Specialty Interest Section (SIS) Meetings at the ADRIO offices and via webinar, on average 1 to 2 evenings a week from 5:45 - 7:30 pm. They are free to members and feature topics and speakers of great interest to ADR practitioners. The following meetings are scheduled: MONDAY, NOVEMBER 19, 2012, 5:45 - 7:30 PM EST

Session on Facilitation

Guest Speaker: Heather Swartz, C.Med, Agree Inc.

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ WEDNESDAY, NOVEMBER 21, 2012, 5:45 - 7:30 PM EST

Workplace Section Meeting

Topic: Mediating Workplace Disputes Guest Speaker: Elinor Whitmore, C.Med, Stitt Feld Handy Group

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ WEDNESDAY, NOVEMBER 28, 2012, 5:45 - 7:30 PM EST

Special Meeting for Lawyer and Non-Lawyer Members Topic: Insurance Coverage for Arbitrators and Mediators Guest Speakers: Victoria Crewe-Nelson, B.A., LL.B. (Scots), NCA, Assistant V.P. - Underwriting, Lawyers’ Professional Indemnity Company (LAWPRO) AND Janet Lobo, CRM, CAIB, Assistant V.P., Marsh Canada Limited, Consumer Practice Moderator: David I. Bristow, Q.C., C.Arb

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ WEDNESDAY, DECEMBER 12, 2012, 5:45 - 7:30 PM EST

Insurance Section Meeting Topic: TBA

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ THURSDAY, JANUARY 24, 2013, 5:45 - 7:30 PM EST

Human Rights Issues in the Work Place Guest Speaker: Ranjan Agarwal, LL.B., Bennett Jones LLP

To register: Ontario members - please contact Mena Sestito at mena@adrontario.ca or 416-487-4447 x101 Atlantic, Manitoba and Saskatchewan members - please contact Brenda Lesperance at brenda@adrcanada.ca or 416-487-4447 x 106. For details and speaker biographies, please visit www.adrontario.ca

ADRIC 2012: Guiding Beacon to Best Practices in ADR October 25-26, 2012 Halifax

Join us for ADR Institute of Canada’s AGM and National Conference October 25-26, 2012 in Halifax for interesting plenary sessions; the networking Cocktail Reception; the McGowan Luncheon and a presentation by keynote speaker: The Honourable Mr. Justice Thomas Albert Cromwell, Supreme Court of Canada; plus over 20 sessions in four specialty streams: Building an Effective ADR Business, ADR in the Workplace, Challenge and Innovation in ADR, and Family and Community ADR!

Location: Atlantica Hotel Halifax. Toll-free reservations: 888-810-7288, reservations@atlanticahalifax.com Ask for the ADR Conference rate. Details and registration form at: www.adrcanada.ca

17


ADR UPDATE FALL 2012

CLASSIFIEDS Classified Advertising and Announcements of Interest to ADR Professionals Accounting Services / Announcements / Courses / Court Reporting Services / Mediation Rooms / Office Space / Professional Opportunities / Positions Available / Positions Wanted / Transcription Services / Translation Services LEGAL AND MEDIATION SERVICES Panotier Legal and Mediation Services Paralegal licensed by the Law Society of Upper Canada. Affordable representation for your client in all practices areas as permitted by LSUC. Fully insured and licensed. Gail Daniel-Panotier 416-571-4934 gpanotier@gmail.com ANNOUNCEMENTS/EVENTS The ADR Institute of Ontario presents Specialty Interest Section (SIS) Meetings at the ADRIO offices and via webinar, on average 1 to 2 evenings a week from 5:45 - 7:30 pm. Full list available at www.adrontario.ca and in the SIS Section of this Newsletter.

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ The ADR Institute of Canada presents: ADRIC 2012: Guiding Beacon to Best Practices in ADR October 25 – 26, 2012 Halifax, NS Pre-Conference day, October 24th: Marketing Your Practice Please find flyer and registration for m at www.adrcanada.ca.

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ The ADR Institute of Saskatchewan presents a two-day facilitation training program: Facilitating with Ease, November 15-16, 2012, at the Ramada Hotel, Regina, SK. Deadline for registrations: October 31, 2012. Please find brochure and registration form at www.adrsaskatchewan.ca.

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ The ADR Institute of Ontario presents: Civil Procedure Workshops Sat., Nov 17, 2012 with Warren Morris ADR Institute office, Toronto - 9:00 am to 4:30 pm Visit www.adrontario.ca for details and registration form. 2013 dates: Sat., Jan 26, 2013 with Gary Furlong Sat., May 25, 2013 with Gary Furlong

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

The ADR Institute of Ontario presents: Meet ‘n Greet - Table Talk - An Evening of Networking and Discussion - Emerging Opportunities in 7 Practice Areas, Wednesday December 5, 2012, Novotel Toronto Centre, 45 The Esplanade, Toronto - 5:30 pm to 9:00 pm. All members and friends welcome. Program details to follow. www.adrontario.ca

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ The Canadian Institute for Conflict Resolution (CICR) invites you to look at the ‘News & Events’ section on www.cicr-icrc.ca/en/home/news-a-events to see their 2013 Training Schedule.

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ COURSES ADR Institute of Ontario Practical Ethics for Working Mediators Online course for members of ADRIO Registration deadline for Course Window 3: November 23, 2012 To register, contact Brenda Lesperance, 416-4874447 x 106 or brenda@adrontario.ca

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ Riverdale Mediation Advanced Family Mediation and Negotiation Theory and Skills - November 9, 10 & 11 www.riverdalemediation.com

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ Family Dispute Resolution Family Mediation - November 4, 5, 6, 7, & 8 Family Mediation Skills - November 13, 14, & 15 Family Arbitration - November 20, 21, 25, 27, 29 Collaborative Law, Level I - December 11 & 12 Collaborative Law, Level II - December 15, 16, & 17 www.familydisputeresolution.com

Family Mediation Instructors: Richard W. Shields, Barbara Anderson & June Oliver Dates: Nov. 18, 19, 23, 24, 25, 2012 Screening for Domestic Violence and Power Imbalance Instructors: Antoinette Clarke & Darlene Murphy Dates: Dec. 7 & 8, 2012 www.coned.yorku.ca/familymediation MEDIATION ROOMS Atchison & Denman Newly renovated boardrooms with breakout room, breakfast and refreshments. www.stenographers.com TRANSCRIPTION SERVICES Atchison & Denman: Quality transcription and fast turnaround. www.stenographers.com PUBLICATIONS The Arbitration Handbook and The Commercial Mediation Handbook www.adrcanada.ca/resources/handbooks.cfm

Other Headings available, such as: Accounting Services, Court Reporting Services, Office Space, Professional Opportunities, Positions Available, Positions Wanted, Translation Services...

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ York University Certificate in Family Mediation Introduction to Family Mediation Instructor: Richard W. Shields Dates: Nov. 2, 3, 4, 2012 Family Law for Family Mediators Instructors: Richard W. Shields & June Oliver Dates: Nov. 11, 12 and Nov. 16 and 17, 2012

To book your advertisement, please email exact wording to: janet@adrontario.ca $50 (minimum) for up to 5 lines of up to 49 characters including spaces. Extra lines (or partial lines) $15 each. HST extra. To book your advertisement, please email exact wording, per line to: janet@adrontario.ca Terms: All ads must be pre-approved. Payment is due 30 days prior to publication. Any late payment without prior arrangement with the Institute will result in the advertisement being placed in the subsequent publication.

18


ADR UPDATE FALL 2012

ONTARIO ADR Institute of Ontario, Inc. (ADRIO) Suite 405 - 234 Eglinton Avenue East Toronto, ON M4P 1K5 Tel: 416-487-4447 Fax: 416-487-4429 admin@adrontario.ca www.adrontario.ca

ATLANTIC

SASKATCHEWAN

MANITOBA

ADR Atlantic Institute (AAI) Box 123 Halifax CRO, NS B3J 2M4 Fax: 902-435-3084 admin@adratlantic.ca www.adratlantic.ca

ADR Institute of Saskatchewan Inc. (ADR SK) Box 22015 RPO Wildwood Saskatoon, SK S7H 5P1 Tel: 1-866-596-7275 (toll free) Fax: 1-855-487-4429 (toll free) info@adrsaskatchewan.ca www.adrsaskatchewan.ca

Arbitration & Mediation Institute of Manitoba Inc. (AMIM) P.O. Box 436, RPO Corydon Winnipeg, MB R3M 3V3 Tel: 1-855-529-8666 (toll free) Fax: 1-855-487-4429 (toll free) info@amim.ca www.amim.ca

19

ADR Update  

interesting articles about adr

Read more
Read more
Similar to
Popular now
Just for you