Perspectives from a Mediator/Arbitrator

Saturday, February 25, 2006

Sport and Arbitration

As anyone who has followed this blog would know, I am quite keen about sports and always intrigued by the interaction of sports and dispute resolution systems. Today we have the story on the front page of the Globe and Mail (okay I am talking about the sports section here) about a Danish basketball player's eligibility to play university sports in Canada. The dispute was determined quickly by an arbitrator from the Sport Dispute Resolution Centre of Canada. What struck me as most interesting about this article was the discussion about the need to move more quickly to outside arbitration and how that is what happened in this situation as what was supposed to be the front line of decision-making was too closely involved in the case to hear it. Because of that problem, it appears (from what I can gather from the article) that the parties skipped over the first stage of the dispute resolution mechanism and went quickly to outside arbitration. Nice to see arbitration work as a quick and effective means of resolution!


As we near the end of the Winter Olympics, I am struck by two things:
1. The early concerns of how the Canadian team was doing were way overblown - whatever measure you choose - these Games have been very successful.
2. There really was a whole lot less controversy than usual - very few medals taken away for positive drug tests, no dramatic judging problems - it appears as if more than before these competitions may have been held fairly and been determined on the field of play

Wednesday, February 22, 2006

Olympic Hockey

I am very proud of the domination of the Canadian women's hockey team. I am not holding out much hope that the Canadian men will have a successful result today against Russia - I will be in a mediation at game time.
My biggest hope for the day is that the Swiss find some way to defeat the Swedes. Given that the Swedes tried to set themselves up for this matchup - it would be ironic to see them lose.

Mediation tip #1 - Preparation

This is the first in a series of tips that I want to present to make the mediation experience more helpful and valuable. It is my hope that it will provide insight into the process for the people who are attending a first ever mediation but also help out the regulars.
I am surprised occasionally that the people attending the mediation are not fully prepared. Here is a quick list of things I think should be done beforehand:
1. Know the mediator. Who? What is he/she like? What are the mediator's areas of expertise? Has the lawyer ever mediated with him/her before?
2. Know the cost. What are the costs of the mediation? How long is it likely to last? Who is paying for the mediation?
3. Know the process. What is going to happen at the mediation? What is expected of me?
4. Prepare more than one offer. Usually most mediations will sooner or later come to the point where offers to settle are exchanged. Work out ahead of time at least your first and your second position. People are much more comfortable if there is a plan that can be followed.
5. Be open. Almost every mediation that I have done (and my rough count is at about 600 or so right now), something unexpected happens. It can be a new fact, it can be a change of position, it can be anything - you need to come to the mediation in a frame of mind where you can go with the flow of what is happening.

I am sure that as I work through the stages of mediation, I will think of more items that properly fit under the heading of preparation. Next tip - Style of mediation?

Friday, February 17, 2006

How Swede it is! cases cancel. Sometimes...that gives me the opportunity to draft awards or catch up on administrative tasks. Sometimes...the Olympics are on. Sometimes...all they are showing is a women's hockey game between US and Sweden. No country has ever beaten Canada or US in women's hockey. No country has ever come close. Administrative tasks take my attention. Sometimes...Sweden and the US are tied after two periods. Administrative tasks can wait. Sometimes...they are still tied when the game ends and it goes into overtime. Sometimes...overtime ends and they are still tied. are decided by a shootout. Sometimes...the huge underdog wins in that shootout.

Team Canada plays Finland now - the only team given a chance before the Olympics started to beat either US or Canada. The experts forgot to tell the Swedes. Sometimes...miracles happen.
(Apparently, the Swedish coach said that if only his goalie could play like Jim Craig and his best player like Mark Johnson and he could coach like Herb Brooks there might be another Miracle on Ice - nice usage of American Hockey Mythology against them - for those who do not know what I am talking about those are some of the main players from the Miracle on Ice in Lake Placid when the Americans defeated the Soviet Union and then went on to win the gold medal)

I will have my fingers crossed that there is only one miracle in that Swedish team and that this is not the year for the Finns to play giant-killer.

Olympics - Positive Drug Test! (again)

Well frankly this is more what I thought we could expect. A Russian biathlete has been stripped of her silver medal and sent home after failing her drug test. I am continually surprised by the fact that these athletes get caught cheating. I am not surprised that they are cheating!
Talked to some people a few days ago who were complaining about how Canadians were doing at the Olympics. Medal count is now at 9 and I would think that the Salt Lake total from 2002 of 17 total medals is easily within reach. The predicition of a high of 25 at the start of the Olympics now seems a little too optimistic but we shall see. Enjoy the Games and watch for more positive drug tests to come!

Tuesday, February 14, 2006

Olympics - Positive Drug Test!

I am not surprised to learn today that there has been a positive drug test on day four of the Olympics. I do have to admit that I am a bit surprised to find out that the person who tested positive is a bobsledder from Brazil! As I said at the beginning of the Olympics, I am expecting a fair bit of controversy at these games but this one comes out of left field. Some commentators have suggested that there are lots of elite athletes who take performance enhancing drugs - it is only the "stupid" ones that get caught - that might explain what happened to the Brazilian bobsledder.

Valentine's Day

Just a quick note to wish you all a Happy Valentine's Day. I am not a big fan of "Hallmark holidays" but if it is a day when you make sure that someone special in your life knows that they are very special you will be living the spirit of the day.
Over the next little while, I plan to blog a little about my experience so far in blogging and also start a series that I intend to call "Mediating Better - Tips from a mediator". It will be a straightforward guide to the world of mediation and my suggestions on how to be more successful at mediation.

Friday, February 10, 2006

An update

Alfonso Soriano lost his arbitration today and will earn only $10 million to play baseball this year!

Olympics, Disputes and Arbitration

Today marks the start of the Winter Olympics. I will be watching over the next two weeks lots of sports - many of which I have not seen since the last Winter Olympics in 2002 in Salt Lake City. I remember fondly the first Olympics I ever really watched, the 1976 Summer Olympics in Montreal. Canada became the first nation ever to host an Olympic Games and not win a gold medal - Greg Joy's silver in the high jump was the best we could muster. Well now that the Turin or Turino (depending on who you ask) Games are upon us - Canada is expecting up to 25 medals and is hoping to finish third among all nations - I assume that US and Germany are expected to do better but maybe the Norwegians are expected to be in there somewhere!
While I will watch and enjoy the sports, I will also be watching for the inevitable disputes that will arise. Who would have thought before the Salt Lake Games that a figure skating judging controversy would be revealed (lots of us would have expected it to occur) and that it would be resolved by giving two pairs the gold medal in pairs skating? Who would have thought after Becky Scott of Canada finished third in a cross country ski race that many months later she would be given the gold medal as both the original gold and silver medalists were disqualified for using banned substances? What will it be this time? How will it be resolved? What process will be used to resolve it?
Finally, on a somewhat related subject, a record-setting salary arbitration will occur in baseball. Alfonso Soriano, a second baseman for the Washington Nationals, will receive a record-setting salary arbitration award. He has asked for $12 million a season and his team has countered with an offer of $10 million. Either way that the arbitrator goes, it will be a record salary award as there has never been an award of $10 million or more.

Sunday, February 05, 2006

Super Bowl Sunday and Gambling

My father's extended family always gets together before the Christmas holidays for a gathering. My father, who is the eldest in his family of four, and all of his brothers and sisters and their children and their children's children gather for lunch here in Toronto (at least all of those who are able to make it). My grandparents, when they were alive, came and enjoyed this gathering of the extended clan. About twenty-five years ago, one of my cousins met and then married Dave. Ever since Dave has been coming to the party, we have been having a Super Bowl "raffle". The way it works is that all the playoff teams are put in a hat (but at the time of the draw we do not know who exactly will be the playoff teams so we just right down things like "NFC West" or "AFC wildcard #2") and for a "toonie" you get a team. It is a whole bunch of fun and if you win you are able to pocket about 24 dollars. Last year my son Clarke was lucky enough to draw the piece of paper that became the New England Patriots - Super Bowl Champions of Super Bowl 39.

This year I was lucky enough to pull "NFC West" which is the Seattle Seahawks who will face off tonight against the Pittsburgh Steelers. I expect the Steelers to win but with "money on the line" I am sure to be watching to see how the Seahawks do. That is all I have riding on the game!

I was surprised to hear this week on the radio that the expectations are that in Las Vegas there will be approximately 100 million dollars bet on the game. Off-shore gambling is expected to be over 400 million dollars! I have placed a bet on the game that is the same as a the price of a cup of coffee - there will be no change at all in my life whether I win or lose. But, with those kinds of dollars being bet out there some people must be betting the cost of a child's bike, the cost of a modest car or in some cases the price of a house! Accepting that there may be some people who can afford to lose these amounts and not have it impact their life, there also must be some who can't. When they do lose (and the one thing you can be sure of in any gambling is it is designed to make sure the "house" wins not the gambler), what impact will that have on the person's life, family and/or job?

Alcohol and drugs are widely accepted now as addictions and when a person can explain that his/her behaviour is caused by the addiction, the duty to accomodate the handicap to the point of undue hardship will arise (Ontario law). I will leave to you to do your own review of the case law to determine how it arises and the impact of it doing so. Gambling has traditionally not been treated quite the same way - it will be interesting to watch over the next few years as gambling only seems to be on the rise whether this will change.

Enjoy watching the game tonight. I will. I have nothing more riding on it than the bragging rights of winning the "Laurence C. Raymond Memorial NFL Super Bowl Pool". Go Seahawks!

Saturday, February 04, 2006

Thoughts on bargaining

Thoughts on bargaining - from the perspectives of a parent, child and mediator

Recently, a female president of a trade union told me of an experience she had in collective bargaining. At the end of a Friday session, it was suggested to her that the bargaining would continue on Saturday. She said no, she would return on Monday. She was a mother of young children and she would be spending the weekend with her family.

That got me to thinking about how our life and life experiences determine our approaches to bargaining whether that is collective bargaining or any other type of bargaining. As a parent of two young children, I am quite familiar with the shrewd bargaining tactics of children. After speaking to many other parents, I think the child's approach of "keep asking until you get the answer you want" is fairly universal. It is a bargaining tactic of simply trying by repetition to wear down the other side until you get what you want. Another tactic that will be familiar to any adult who lives in a home with a child where there are two adult decision makers is the "ask the one you think will give the answer you want" approach. Again, a rather simple approach used in all types of bargaining of trying to figure who is "most likely to say yes" and then going from there.

As adults, we like to think that we bargain differently than children but in many ways we do not.
Many adults use the keep asking approach or the ask the person who will give the answer you want. Another approach that is used by both children and adults is the "waiting for the deadline before I will move approach".

At a mediation recently, one of the plaintiff's first questions was - what is the deadline? A very sensible question. He wanted to know when the bargaining was going to get serious and how long the bargaining process was going to be. He knew, as I did, that the bargaining was not likely to get serious until the parties were at or near the deadline. In many situations, parties are able to conclude bargaining without a deadline but more often than not, the creation of a deadline is crucial to arriving at a bargain. Sometimes that deadline has to be created artificially other times it is real.

In the collective bargaining session involving the parent of young children, the president of the bargaining unit was making two things very clear. First, she believed that nothing was going to change whether the next session was Saturday or Monday. Second, if and when the deadline did come it was not going to be at a time that was likely to interfere with her duties as a parent.