Perspectives from a Mediator/Arbitrator

Tuesday, June 27, 2006

Sports and Labour Relations collide!

There is a short report today in the Globe and Mail about the successful drive by something called the BC-NHLPA to be recognized in British Columbia as a trade union. It is very interesting because it means that in the event of a work stoppage, the Vancouver Canucks would not be able to use replacement workers (players). In the article, it indicates that the National Hockey League will appeal the decision (I assume that will be a judicial review). Professional sports leagues have been set up to be governed by one set of labour laws not by the labour laws of a series of jurisdictions, although there have been situations where the league or association has chosen to govern itself as if it is bound by a series of jurisdictions. It will be interesting to see where this goes and what ramifications flow from it.

According to the Globe and Mail, the decision was by vice-chair Najeeb Hasan. I would love to know if this is the same guy who I knew when he practiced labour law in Ontario - if you know - drop me a line please!

Saturday, June 24, 2006

OK - This is weird!

I can read the Globe and Mail for days or weeks and not read about anyone I personally know. I can read it for months and not see a picture of anyone I know. Well - today for some reason the paper is full of people I know.

First I read Christie Blatchford's column. I am not a loyal rader of her column but I do read it from time to time. Christie is a very good friend of a very good friend of mine. I have never met her. Today, she is writing about Sharon Shore. I first learned of this story from Shore's lawyer, Frank Gomberg - who is a personal friend of mine. I know almost all of the people mentioned in the column and some that are only referred to such as the "head of the Law Society's investigations department". I thought to myself as I read the article that this is really weird that I know everyone mentioned in here but it was just one story...

Next I am reading the Focus section. It is all about Boomers. As I do not consider myself one, I am not that interested. I am leafing through and I come across a series of photos and one of them looks very familiar. Michael Redhill is an author. He is also the father of two sons. Both of his sons are in classes with my children. He, like me, does not consider himself a Boomer. He is the person who was chosen to represent the 40 year olds in "talkin' 'bout their generation". Okay, now I am up to two articles and Michael has three pictures of himself in their looking "tres cool".

Turning to the business section, I must say that I was almost not surprised to see a full width photo of Tim Gleason in his sandals and shorts. I should have been surprised because a. you do not usually see people in sandals and shorts in the business section and b. you do not usually see union-side labour lawyers in the business section. But there he is! He was interviewed about his client's victory in defeating a dress code in an editorial department of a newspaper.

That's it - three articles. Not sure that Michael Redhill was right when he was quoted as saying, "I perceive those who are 15 or 20 years older than me as the ones who are in charge of the reins right now."

I will see how long it is until I next read about someone I know personally.

Enjoy the weekend!

Thursday, June 22, 2006

World Cup Fever! - Part 2

Well we are headed towards the round of 16 in the World Cup - the elimination round. My two favorite teams are through - England and the Netherlands! As well, we now have a clear African Cinderella team as Ghana defeated the United States. Unfortunately, a meeting with the Brazilians is next on the calendar for Ghana but for now we can dream of an African squad progressing deep into the World Cup tournament. I will be watching to see if France can qualify for the group of 16 and then doing my best to see the single elimination games as we progress towards the final on July 9.
Catch the Fever!

Arbitration in the News!

Yesterday's Globe and Mail had an article about arbitration. It was basically about the growth of commercial arbitration. One of the issues raised was that with the growth of commercial arbitration there is a consequent reduction in the number of cases going before the courts. As a result, there is a loss in terms of the creation of a publicly available jurisprudence. Unlike labour arbitration, the decisions are not public. It will be interesting to watch as commercial arbitration expands here in Canada whether there is any move to make commercial arbitration decisions public. I would love to give you a link to the article but the Globe and Mail does not have free access.

Tuesday, June 20, 2006

Neutrality and Bias

I did not get around to reading the Sunday New York Times until today. Sunday was Father's Day, of course, and I had a busy day that started with running 10K for Prostate Cancer Research. In Sunday's Times, there is an interesting article on the perception of bias among securities arbitration panels in the United States. Two things struck me about the article. One is that the percentage of investors that have made successful claims at arbitration has decreased over time. Second is that the arbitration panels are made up of persons who do not arbitrate full-time.

I find it very odd that the percentage of successful claims has decreased over time. While there may be many explanations as to why that is the case - the one suggested in the article is that the arbitration panels are predisposed against the interests of the claimants. Not only that, but that the panels have become more predisposed against claimants than had been the case. (which leads me to the second thing)

From what I gathered from the article the arbitration panels are made up of three persons - one from the securities industry and two representatives of the public - but the arbitrators are not full-time professional arbitrators - rather they are lawyers and/or business persons who have other business interests. I can not imagine a system other than the one I am involved in here in Ontario where every arbitrator is a full-time professional neutral. We do not have other business interests other than the interest in our own arbitration business. I would love to hear from my American colleagues how this system developed and whether the concerns raised in the Sunday Times are valid

Tuesday, June 13, 2006

Perspectives from a Mediator/Arbitrator goes live!! A review

Last night about 45 members of the Ontario Bar Association gathered at the Imperial Pub for "A Beer and a Chat with the Arbitrators". I was pleased to be asked to be one of the arbitrators. I had never been to the Imperial Pub before which is owned by Elaine Newman's, another Ontario-based arbitrator, family. She was a wonderful and gracious host. Laura Trachuk, another Ontario-based arbitrator, moderated the discussion brilliantly among me and my two fellow panelists - Jane Devlin and Paula Knopf - two more Ontario-based arbitrators. Just realized that I was the only male among those arbitrators! Bill Kaplan was supposed to provide gender-balance and his wit and wisdom to the panel but was unable to extricate himself from central bargaining between CUPE and the Ontario Hospital Association.

Interestingly, the chat which lasted about an hour was very much about relationships and boundaries. What should or should not a mediator/arbitrator do in various situations? There was a fair bit of discrepancy (fair bit of commonality as well) among the panelists on issues like - do you in a med/arb tell one side or the other that if the arbitration happens that the party will lose? Do you draft the minutes of settlement? Do you push parties to start exactly at the starting time of the hearing?

For me, the manner in which I act as mediator or mediator/arbitrator is based on the working relationship I have with counsel. Sometimes, even in the first meeting, counsel and I can develop a quick understanding as to how each other are going to work and I can do whatever I think is necessary to "get to the deal". Other times, even with counsel that I have worked with countless times, I have to proceed cautiously and carefully so as to not "step across the line". My final statement at the chat was a plea to counsel present (and hopefully to others) to trust us and tell us where the boundaries are - we are not "one trick ponies". We are there to serve the parties and not the other way around - "speak with us, trust us, use us!!" Let us know the boundaries, help us to develop a relationship based on trust and enable us to assist the disputants resolve their dispute.

Thursday, June 08, 2006

World Cup Fever!

It has been a very busy week so very little time to post, but here we are on the verge of one of my favorite events, the World Cup of Soccer or as I am sure it is called in the rest of the world - the World Cup of Football (subject of course to translations). I, as always, will be looking forward not only to the event but to the juxtaposition of sport and arbitration. Will there be any positive drug tests? Will they have an impact on the outcome?

Two other quick tidbits come to mind. One is the story of the pitcher for the Arizona Diamondbacks, Jason Grimsley, whose home was raided yesterday. He, apparently, has been using human growth hormone (HGH). I am afraid that we are on the verge of the lid being blown off the drug issue in baseball!

The other tidbit comes from 1977. I was fortunate enough to spend 4 months in England with my family. We did alot of touring around. One of my memories is of seeing signs at gas stations near highways that stated - No Football Coaches Allowed. As a young Torontonian, I wondered why they would exclude Leo Cahill from the premises. I came to learn that they were trying to prevent English soccer (footaball) rowdies. That brings me back to the World Cup. I hope there are no incidents in the stands. I will be rooting for the Netherlands, England and whichever of the African teams that emerges as a Cinderella team. Enjoy the games and we will stay in touch on any of the legal issues (that inevitably I am afraid will emerge).