Perspectives from a Mediator/Arbitrator

Why no blogging Steve?

2008-09-22T09:36:00.002-04:00

I have been asked this question over and over again. I thought I would try to answer it. There are a couple of things stopping me from blogging. The first is time. I do not seem to have any extra. From arbitrating or mediating almost every day to running a small business to being an active husband and father to trying to have a social life - there simply is not a lot of time for a lot of extra things. I have friends who I have been trying to see for 6 months. There just does not seem to be enough time in the day.

The second reason is perhaps more substantial and that is that I have found it hard to struggle between the things that I would like to say and the things that I am able to say. For instance, as a member of the Grievance Settlement Board, I am a "restricted public servant". In election periods, as we are having right now in Canada, I am significantly restricted in terms of what I can say and/or do. It is but one example of the restrictions that arbitrators face in having a "public opinion" and no opinion is more public than this one that goes out onto the internet and stays there forever.

I will try and post more often...

by the way - I can talk about the US election (I think). The most interesting race in our lifetime! Any idea when was the last time that neither the sitting president or vp was running for president? Let me know...

Baseball Arbitrator

2008-02-18T14:39:00.002-05:00

I am indebted to http://www.baseballmusings.com/ for bringing the following to my attention. I expect that there is (or should be) a good book out there all about the arbitrators in baseball history.

Former baseball arbitrator Thomas Roberts died due to age-related complications last Wednesday. Roberts became a national figure in 1983 when he ruled that then-Dodgers pitcher Fernando Valenzuela could earn $1 million for a year's salary. Valenzuela became the first baseball player to break the $1 million salary barrier through arbitration.In 1988, Roberts awarded $10.5 million to 139 players after he found that owners had conspired to restrict the movement of free agents during the 1985 season.The owners agreed in 1990 to settle the collusion cases for a $280-million payment. The Major League Baseball Players Association hired Roberts to oversee the distribution of the money to about 840 players.Donald Fehr, executive director of the players association said Roberts had an "extraordinary reputation.""He had a really good sense of what the right and what the appropriate result should be," Fehr said. "He was courteous almost to the point of being courtly."In a 1989 article in theSt. Petersburg Times, Roberts said that there "is a feeling that arbitrators have a tendency to split things, to give one to the club and the next to the player in the hope of not offending either party so he'll be hired again.""That's an illusion," he said. "A successful arbitrator doesn't pay attention to his box score, in baseball or anywhere else."

That is one of the best quotes ever from an arbitrator!

The Election and Proportional Representation

2007-09-17T13:39:00.000-04:00

The Ontario Provincial Election is now underway. The election of a government is very important. However, perhaps even more important is a referendum on proportional representation. I have to admit that I have always been a fan of the concept of proportional representation but I am a bit worried about the implications of this particular proposal. Here are some of my thoughts - happy to discuss:
1. We will have bigger ridings which will mean that MPPs will have more constituents and as a result be more remote from their constituents.
2. We will have a number of MPPs who will have no constituents - is that not a significant part of the job. To whom will they be responsible? What if they want to "cross the floor"
3. Will we have permanent minority governments? Will minor parties be too powerful - what would it mean if a party with 3.5% of the vote held the balance of power - is that sensible? appropriate? desirable?

What do you think? I am most concerned that there seems to be very little discussion and the vast majority of people do not appear to be at all informed about this issue.

On a more personal note

2007-09-17T13:14:00.000-04:00

Maybe it is just coincidence that my last post was in January just before my partner took a new job. Accordingly, things have been a little busier than usual.

Glad to report another successful year of sponsorship of teams in the Beaches Community Soccer League - this year both kids played on Raymond United and their seasons were fun and enjoyable. If you live east of downtown, I recommend this league for its low stress approach to kids' soccer.

Arbitration tips - Part 2

2007-09-17T13:06:00.000-04:00

Today. I want to say a little bit about cross-examination. I find that there are lots of cross-examinations that seem to lack focus. I once heard an excellent speech by Julian Porter on the art of cross-examination. He said that "cross-examination is a precision strike behind enemy lines - you get in, do your damage and get out before they even know that you have landed".

While that is not true of all cross-examinations, I find that many advocates do not remember this when they are cross-examining. Frequently, a cross-examiner will make a very good point and then at some point in the cross-examination come back to the point again. Now, there is a chance that the witness is going to say something a little different. While that may assist an argument on credibility, it may also deflate the point that was made earlier. I do find myself from time to time why the cross-examiner came back to the point? Try not to. If you really think that the trier of fact has not grasped the point, there is a chance in final argument to highlight it - you do not need to highlight it by revisiting it.

Another reason that cross-examiners should try to keep the cross-examination short is that they sometimes forget that the witness being cross-examined is not a witness that "generally speaking" is going to help the case. The longer the cross-examination goes on - the more likely the witness will begin to repeat points made in the examination-in-chief or make points that were missed in the examination-in-chief. Neither are particularly helpful for the cross-examiner.

Wow - where have I been?

2007-09-17T13:04:00.000-04:00

OK. The last thing you want to read from a blogger is some excuse as to why there has not been anything new for awhile. So I will just say that there has not been and there will be!

Arbitration tips!

2007-01-30T16:54:00.000-05:00

I am going to embark on a multi-part series on tips from the arbitrator. Similar to what I did previously about mediations, this will be a little less structured because there are a variety of things that I want to talk about and they will not necessarily go in the order of an arbitration - today's topic is Opening Statements. These are intended to be tips that anyone who is doing arbitrations should find helpful.

In particular, I want to talk about themes. Often, an opening statement is the first opportunity to tell the arbitrator "why are you here?" I do not want this to seem at all that I am belittling the process but - you need to tell a story. Tell it as much as you can like you would to a friend or like you would have to a colleague in the hall. Tell me what is great about your case! Tell me the interesting facts and/or the intriguing question of law. But equally important is to have a theme - a case about patient abuse in a nursing home can be "elderly people deserve to feel safe in their home" - a case about a job competition can be "Qualifications were not important - who you partied with after work was" or "You actually have to know something more than what a nail is to teach carpentry" These certainly are not the best examples but they provide an illustration of what I mean by "theme". Once you have set your theme - you can develop the importance of the theme in your opening statement.

There is a reason when we read to kids at night that we read stories - if you have a theme and then develop that theme - it is interesting, it keeps the listeners attention. We read stories for the same reason. As the person listening, I want you to tell me a story - if you start with a theme then I will have a basis or cornerstone for what you are telling me. If you pick the theme correctly, you can carry it with you throughout the case and use it at the start of your closing argument as well. Advocacy is all about persuasion. Think about the people you talk to and the things that you read and ask yourself the questions - 'why was that persuasive?, 'why did that make me think about my position? - often the answer is that it was a story well told which is often based on a very good theme.

Try a theme the next time you make an openinig statement and see if your client, the other side or even the arbitrator reacts.

Comments as always are welcome!

Welcome back!

2007-01-30T16:46:00.000-05:00

I started this blog on January 25, 2006 and overall it has been a very interesting and rewarding experience. I constantly am meeting new people who know something about me already because they have visitied the blog (and often they have something to say about what I have written (and occasionally it is even positive). Recently, I have taken a bit of a break from the blog but I am now ready to renew my voice in cyberspace!

Announcements!

2006-12-14T12:59:00.000-05:00

I am pleased to announce that I have been appointed as a part-time vice chair of the Ontario Grievance Settlement Board. Susan Stewart, the Chair of the Board called me with the good news earlier this week. I am looking forward to the challenges of my new position.

My wife announced today at her work that she is leaving after 7 years because she has been admitted into the partnership of a leading Canadian law firm. I am very proud of her accomplishments! It will be a very rewarding position as she will be bringing her expertise in pensions and benefits law to the firm.

TFK, Holiday parties and Wii

2006-12-08T09:23:00.000-05:00

Been gone for awhile. I have been avoiding typing because of an ongoing soreness in my right arm - caused by typing but last night I was at TFK and a number of people complained that I have not been blogging so I have decided this morning - to put it in a sports cliche - to suck it up and to get back into the game.
What is TFK you might ask? It stands for Thirst for Knowledge. It is a group of employment lawyers who get together throughout the year and there is one big party every year in December. Organized and originally conceived (I believe) by Norm Grosman, David Harris and Randy Echlin (as he then was - now Mr. Justice Echlin) and now in its fifth year, it is the party of the year in the employment bar community. Given a very early start to my day yesterday and a lot of ther things going on, I only stayed for the cocktail party but it was great fun to see so many of the people I work with day in and day out in one place. I hear the party closed very late at the King Eddy!
Tonight is another annual holiday party. I do not want to sound like the Grinch here but I wish these things were spread out during the year. Why should we have to balance food, a little delicious little morsel and great conversation just in December? Further, my waistline would appreciate these events being a little more spread out - tonight will be my third this week!
And what about Wii? Well, this is just a desperate attempt by a desperate father to see if anyone out there has an inside track on the Wii. Let me know!

Elephants and Elections

2006-11-07T09:52:00.000-05:00

Well tonight is the U.S. Election and I will be watching. I love watching elections and election coverage. It does not even have to be one that I am particularly interested. I will watch provincial election coverage from New Brunswick. The first election that I ever watched was in England in 1979. I was fortunate to be with my family while my father was taking a sabaatical leave in Manchester. An election was called while we were there and I stayed up to 3 a.m. watching the election returns come in and a lady named Margaret Thatcher become prime minister. I had no appreciation that I was watching the dawn of a populist conservative political revolution. But, I did. Thatcher, led in part, to the election of Ronald Reagan which lead to the election of Bush I, which led to Bush II, which led to the Iraq War, which may lead to the end of the control in the United States of that same populist conservative political revolution.
Now the symbol of the Republican Party is the elephant. I know I should know why. I was reading last night in a New York Times magazine about the destruction of elephant culture. Here is just a short snippet of the article,

"Everyone agrees that the relationship between elephants and people has changed dramatically. What we are seeing today is extraordinary. Where for centuries humans and elephants lived in relatively peaceful coexistence, there is now hostility and violence...
Today's elephant population are suffering from a form of chronic stress, a species-wide trauma. Decades of poaching and culling and habitat loss...have so disrupted the intricate web of familial and societal relations by which young elephants have traditionally been raised in the wild, and by which established elephant herds are governed, that what we are now witnessing is nothing less than a precipitous collapse of elephant culture.
It has long been apparent that every large, land-based animal on this planet is ultimately fighting a losing battle with humankind. And yet entirely befitting of an animal with such a highely developed sensibility, a deep-rooted sense of family and, yes, such a good long-term memory, the elephant is not going out quietly. It is not going out without making some kind of statement"

There is a lot of interesting material even in thats short snipet. I am not equating the battle of the elephant and the donkey in the U.S. as in any way similar to the battle that the elephant species is fighting with humans to survive, but as I read this last night - I could not help but think about how the actual elephant is fighting to survive while tonight we will see how much power is left in the hands of the political elephant!

Enjoy the ride - I think it would be hugely ironic if Joe Lieberman ended up holding the balance of power in the U.S. Senate making him more powerful than he ever would have been as the vice-president of the donkeys.

Perspectives from a Half-Marathoner - Not!

2006-10-23T09:00:00.000-04:00

It did not work out logistically to run the Niagara Half. My wife did run and had her best time of the year in the pouring rain. Very inspiring. I am proud of her. I now gear down my training for awhile and then gear up for a race-to-be-determined in the spring.

A second half marathon?

2006-10-19T19:24:00.000-04:00

I may run in the Niagara Half Marathon this Sunday. If I do, you can look forward to a second instalment of Perspectives of a Half Marathoner some time next week!

Expectations? Mediations and Baseball Punditry

2006-10-19T18:58:00.000-04:00

Anyone who has read this blog will know that I am a baseball fan. I enjoy watching it and I play in a very complicated computer-simulated fantasy game (by the way the Portsiders missed the playoffs by two games). I am always amazed by baseball pundits. This fall has been more fun in watching the pundits be wrong than I could have imagined. The Detroit Tigers limped into the postseason. They lost their last three regular season games against the lowly Kansas City Royals and were given no chance against the Mighty New York Yankees - by the pundits. The St. Louis Cardinals were even worse down the stretch and literally backed into the playoffs. Everyone (by that I mean the pundits - the people who are paid to think about these things) was saying, as the playoffs began, that the Cardinals were as good as finished. Well - what happened? They played the games. The unexpected happened. Now the Tigers are in the World Series and depending on the outcome of tonight's game seven - the Cardinals may be there as well. It gets more fun than that for people like me who like to see the experts come up on the short-end of the guessing games. Going into game five of the Mets-Cardinals series, everywere I turned pundits were saying the Mets were finished if they did not win game five and that the Mets would win the game. They lost the game. That meant the series was over if you listened to the pundits. Then before game six the pundits reinforced what they had said before game five and said the Mets were finished because the Cardinals had a Cy Young-calibre pitcher throwing in game six. The pundits said the series was over. The Mets won. When their expectations of the outcome of game five were not met - the pundits stayed the course and were certain that thier prediction of the outcome of the series would hold true. If the Mets lose game five, the series will end in six. The pundits got both games wrong - those are the experts!

What does all of this have to do with mediation, you ask? Lots. Everyone who is involved in litigation has expectations. Expectations of the outcome. Expectations of the process. Mostly, I find in mediations that people genuinely think that they are going to win (or at least not lose that badly). I have to tell people over and over that it is unlikely that their expectations are going to be met - and sports gives me the perfect example. Just because the experts think they know what will happen does not mean that it will. It might, but nothing in litigation (like sports) is a certainty and it might not. The outcome of one particular baseball game is not unlike the outcome of one particular trial. If you had 100 games to play, you would expect the stronger side to win a majority of the games. If you had 100 trials, you would expect the same. But, like the game, a single trial can turn on an unexpected event.

I will watch the game tonight and continue to think about expectations. The odds tell me that whichever team is leading after 7 innings will likely win - maybe the experts will even tell me that is going to happen. I will watch and see whether the expectation is met. So far the baseball pundits have been more wrong than right with their expectations. I am no expert but I think Suppan shuts down the Mets but the Mets have an unbelievable comeback and will face the Tigers in the World Series

Thanks to my very good friend Jules Bloch who listened to me rant about baseball pundits and said it would make a good blog topic. He will let me know whether this met his expectation - I expect!

Welcome a New Blogger - Another Canadian ADR Site

2006-10-07T10:57:00.000-04:00

I just wanted to let you all know that there is a new ADR site up and running. The site is run by Blaine Donais. He has written what appears to be a very interesting book - Workplaces That Work - which is also the name of his site. He is having a book launch this Wednesday which I hope to attend. After I read the book, I will write a review. Check out the new site - http://www.workplacesthatwork.blogspot.com.

Job Loss - An interesting perspective

2006-10-04T18:24:00.000-04:00

Today's Globe and Mail Careers section features the debut of a series of reports from Sean O'Donovan who has lost his job for the second time in 2.5 years. As someone who deals regularly with people who have lost jobs, it is interesting to read his writing on his feelings and how it has been much tougher on him the second time around. I am looking forward to his further reports. I wonder whether his articles will assist or inhibit his job search?

Thoughts?

Martin Poyser

2006-10-04T17:40:00.000-04:00

If you happen to come across this site and you are looking for information on Martin Poyser - you might be interested in the comment to the entry below from the Medical Director of the Scotiabank Waterfront Marathon.

Perspectives from a Half-Marathoner

2006-09-25T10:20:00.000-04:00

Well. Yesterday was race day. The Toronto Waterfront Marathon. The weather forecast was lousy - but the weather was beautiful (albeit a wee bit windy). A lot of things happened.

My friend Ross came from Pittsburgh to run with me. My wife decided last week to run as well although for her it was a training run for a half marathon in Niagara Falls next month. We got there a little later than we should have. That was good because we were able to see the elite racers come out to the start line. I saw Ed Whitlock - an amazing story. He is 75 years old and he was trying to set a record for marathons by men 75 and over. I said to him as we passed, "Go get em, Ed!". That was bad because we had to walk a long way to join the start group and we ended up almost at the back of the pack. It took 7 minutes to walk back to the start line. Starting that far back, I spent the next two hours running around people. It is not that I am fast - I am not - but there were 4400 half-marathoners and I had to pass almost all of the 2000 or so that I was faster than - not fun.

On course, I told Ross that my goal was to run four twenty-eight minute 5K which would get us to the 20K mark in 1:52 which would allow me to reach my goal of running the race in less than 2 hours. He did a fantastic job pacing me through the race. We made it. I finished in just over 1:58. At around the 20K mark, my body began to give up and I slowed noticably. As I struggled to finish along Wellington, I heard police sirens. They got louder. There were police cars and an ambulance coming down the race course! It was not clear where we were supposed to go. As a driver of a car, I am often frustrated and/or mad by the unwillingness of people to cede to emergency vehicles. Somehow, I was the only person who ended up on the left of the first police car and then I looked up and saw a gate blocking my path. Realizing that there was a gap between the police car and the ambulance, I raced in front of the ambulance and then crossed to safety. The two police cars and ambulance had to be navigated again as at Wellington and University they appeared poised to turn but they had to wait for a crowd control gate to be opened. I went around them. I was amazed by all the people lining the street and cheering me and others on as we finished the race.

After I finished, I heard the public address announcer talking about the end of the marathon. I realized that it was just moments until the end of the marathon and as I was still in the finishing area, I moved as close as I could to the line (just behind the media) and saw the winner cross. Although, he had a seven minute lead on me, he had completed the marathon route in about the same time as I completed the half! Wow! (note - probably did not have to pass a couple thousand runners though!)

After getting home, I learned that Ed Whitlock had smashed the record by ten minutes finishing the marathon in 3:08. He ran two half marathons faster than I ran one. I also learned that I was not among the top half of male finishers or of male finishers in my age group - it was my first after all - I should have been happy to have just finished.

Later in the day, I learned that a runner had died. I came to the conclusion based on his split time that was posted on the internet that he was probably in the ambulance that I had worked hard to avoid. All the lustre of the day was lost. His name was Martin Poyser. He was 41 - my age. His race had not ended in him making his goal time. His race ended in his death. I am still trying to deal with the shock of it all. I remembered that last year a man died after crossing the line in the Toronto Half-Marathon (which will be run again next month). I remembered that that man was reported to have had a heart condition. I looked again at Martin Poyser's split time. He had run to the 12.2 mark much faster than I had. Of course, the majority of the men in my age category had as well. What happened to him that he not only had a heart attack but could not be saved even though he was surrounded by emergency personnel? I hope that in time there will be some answers to those questions. To his family, very simply, my sincere condolences.

I am not sure that I will ever push myself to beat a goal time again...

Performance evaluations

2006-09-11T14:16:00.000-04:00

I read a very interesting article in the Sunday New York Times about performance evaluation. As an arbitrator and mediator, I am frequently confronted with the results of a performance evaluation. I do have some basic problems with them and, in particular, with numeric scoring systems.

The most common system has points awarded often on a scale from one to five. Two issues arise quickly for me. One, if there is a forced distribution of scores (for instance - there must be 20% 1 and 20% 2 and so on), the system is based on a belief that in any organization there will be twenty per cent of the performers who are exceptional. What if in reality this organization happens to have 30% exceptional performers or 10%? Does that mean because of forced distribution there will not be an accurate scoring for some individual? Even though the person is by any objective standard exceptional, the score can not be given because the grouping is already full? I think that it is inevitable and inevitably leads to an inaccuracy in scoring. Second, if there is not a forced distribution system, then you encounter the "wine buying experience" problem. Let me explain. I was in my local liqour store on the weekend looking for a bottle of wine and I noticed that there is a marked increase in the advertisements of ratings that various wines have achieved. I assume that the scale is from 1-100 yet all of the wines that I saw had a rating between 88 and 93! This is just like the organization where everyone is a 4.

A third problem that I have with numeric job evaluation systems is that I am never sure what they mean - is a 2 twice as good as a 1 while a 3 is only fifty percent better than a 2?

Unrelated to my mediation and arbitration practice, I do not think that putting a number on a person helps them improve. If you tell an employee that she is a star performer - it is likely that the person already knew or at least thought that. If you tell an employee that she is an average performer, it is likely that you are telling her something less than what she perceives - is that likely to make her want to do better? I think that the best performance evaluations do not focus on numbers but instead focus on performance - what are you doing well? what else could you be doing? what do you need to do better/

The next time you present me with a performance evaluation - you should know that I am skeptical about what exactly it is telling me (or the person who was being evaluated in the first place).

September 11

2006-09-11T14:09:00.000-04:00

I think that it is important to stop and reflect today as we mark the fifth anniversary of September 11. I just want to acknowledge the devastation of the day and the thousands of lives not only lost but permanently changed as a result of that day. I hope that we will not live through another day like that again but I'm not hopeful that that will be the case.

Where Have I Been - Part 2?

2006-09-07T12:59:00.000-04:00

Well...it was one busy summer but now with Labour Day behind us - I will get back to regular blogging. My friend, Jules Bloch, said to me the other day that the year really ought to start on Labour Day and I think he is right. It would be nice to end the year with summer. It would be nice to start the year with the start of school and fall harvest. I do not think that it is going to happen anytime soon - but sign me up for those who want to change the calendar so the year starts on the first Tuesday of September (admittedly, this idea still needs some work!).

A couple of thoughts and things:

The soccer season is over. Both Raymond United teams had good seasons. The kids were great, the coaches were fantastic and the parents were not annoying. I will miss my summer evenings sitting in a chair watching ten kids chase after a soccer ball. Fortunately, in this league, there is no score-keeping, there are no all-star teams and there are no playoffs - the focus is on the kids and the games - as it should be.

My good friend, Howard Borenstein, became a Provincial Court Judge yesterday. We were invited to a get together later in the evening after the swearing-in to celebrate. The bench is strengthened by Howard's presence - he will be conscientious, fair and hard-working. It will be interesting to hear his stories from his new perspective - I doubt that I will be able to convince him to start a blog though - would be interesting - Perspectives from a Provincial Court Judge!

On the work front, things have been very busy. I have a question though for my fellow mediators. I have recently been beset by the phenomenom of people leaving mediations before I want them to! While I appreciate that I do not have any power whatsoever to keep them there against their will (and I am not looking for that power), I was wondering whether anyone wanted to share their experiences as to how to talk the determined person into staying. My "reasons why you should stay" speech does not seem to be working as frequently as I would like. On a number of occasions, I was quite certain that if the person leaving simply stayed, a satisfactory resolution would have been reached. If you wish to just share your thoughts directly with me - feel free to email me at stephenraymond@sympatico.ca

Where Have I Been?

2006-08-17T09:38:00.000-04:00

Well the simple answer to that is that sometimes things are just too busy to be able to devote some time to blogging. With a vacation for most of the first two weeks of August, the end of July was very busy and then after I got back there was the inevitable backlog of things that needed to be worked through. There are certain disadvantages to not having partners to pick up the slack when I am absent!

I hope to get back to regular blogging very soon.

Personally, the vacation went very well and I am trying to figure out whether I can run a half-marathon in September with one of my best friends - if you see me hobbling - you know I decided that I could!

Elora

2006-07-13T10:19:00.000-04:00

On a nicer note, my parents celebrated their 50th wedding anniversary this past weekend in the small Ontario town of Elora. It is just down the road from Fergus where both my parents were born and raised - and where they eventually married. We had a nice dinner at the Elora Inn and my family stayed at a lovely B&B called the Vickerage. For more details on the Vickerage, click http://www.thevickerage.com.

World Cup - a look back!

2006-07-13T10:08:00.000-04:00

Well, I have been trying to decide for some time what to say about all of this Zidane stuff. Let me start by saying it ruined the World Cup for me. I was watching it live and simply could not believe my eyes. I do not care what happened or what was said - You are the Captain, it is Your team's most important game, You are the best penalty shooter and it sure looks like penalty shots are going to decide it - You turn the other cheek, over and over and over again - and then if you get tired You just keep turning it. Heck - even go complain to the ref if you want - if you want to go really crazy - hit him after the game is over and if you want you can headbutt him! That was just one of the frustrations - the next is that the game was decided by penalties - I detest penalties.

One thing that is not being said anywhere is whether what he did is a criminal act. I do not see Zidane's attack as all that different from what Todd Bertuzzi did, yet I have heard no one even mention a peep that the assault was far beyond what the players could have reasonably anticipated might happen and for which they had provided their implied consent. Thoughts?

Now turning this back to mediation and arbitration - the participants are frequently met with situations where they are being taunted or even "trash-talked" by the other side. The smart ones just let it go - you never win with the bully if you go down into the muck and splash about - you win with the bully if you ignore. Zidane just needed a good mediator right there with him on the pitch to tell him to let it go - or get him back later but for goodness sake do not head-butt him - on the other hand - it will be a long time before anyone who saw it forgets it!

Now back to our regularly scheduled programming....

Viva Europa!

2006-07-02T18:43:00.000-04:00

We are down to four teams at the FIFA World Cup and not only are they all European teams but they are all Western European teams - Italy, Germany, Portugal and France. In fact, only Portugal messed this up from being an all G-8 semi-final when they defeated England on penalties.
At this point, all of my sentimental favorites are out. I am probably rooting for France at this point, but I expect Germany to win it all on home soil.
While we are at it - let me add my voice to the debates about how to improve soccer:
1. Eliminate penalty kicks as a means to determine a winner. Let the players play until it is decided.
2. Have a meaningful time clock. Two fourty-five minutes half. When the ball goes out of play, stop the clock - that way we would all know how much is left in the half/game!
3. The referees have far too much influence on the outcome of the game -a foul can lead to a free kick, a yellow card or expulsion from the game - they need to have a more gradual and progressive discipline system ( I knew labour law would sneak in here somewhere) so that one infraction subjectively determined has a less dramatic outcome on the game.
I am by no means a soccer expert so take all of this with the proverbial "grain of salt"

Sports and Labour Relations collide!

2006-06-27T22:02:00.000-04:00

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!

OK - This is weird!

2006-06-24T14:27:00.000-04:00

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!

World Cup Fever! - Part 2

2006-06-22T21:58:00.000-04:00

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!

2006-06-22T09:10:00.000-04:00

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.

Neutrality and Bias

2006-06-20T16:22:00.000-04:00

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

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

2006-06-13T12:52:00.000-04:00

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.

World Cup Fever!

2006-06-08T21:55:00.000-04:00

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).

Perspectives from a Mediator/Arbitrator goes live!!

2006-05-31T14:55:00.000-04:00

A chance to get these perspectives live will occur on Monday, June 12, 2006 at the Imperial PUBlic Library, 54 Dundas Street East at 6 pm as I and my arbitrator colleagues - Jane Devlin, Paula Knopf and Bill Kaplan are the guest speakers at "A Beer and a Chat with the Arbitrators". Come out if you can. The session is hosted by the Labour Law section of the Ontario Bar Association. It is quite a friendly group and I think the evening will be interesting who wants to know the answer to the question "what is the arbitrator thinking right now?" For registration information click here.

Raymond United

2006-05-31T14:51:00.000-04:00

Raymond United took to the field last night! I am sponsoring my daughter's soccer team in the beaches community soccer league. It is a wonderfully-run community-based league. The kids looked splendid in their red and black uniforms. Tonight - my son's team will take the field as well for its first tilt. That team is also named - Raymond United. If you might be interested in signing up a kid for the league (I am afraid it is quite full for this year) click here.

Stereotypes!

2006-05-27T11:23:00.000-04:00

My daughter no longer wants to be a superhero. She wants to be a nurse. I asked her if she wanted to be a doctor. She said, "no, only boys can be doctors". I, of course, corrected her - "I go to a female doctor". She still thinks that she can only be a nurse and I know that between now and any binding occupational decision I will be able to satisfy her that in our society girls can do anything that they want (okay there may be a few things like certain professional sports that may not be available (we will see). If when she is an adult, she wants to be a nurse - that would be great.
I just saw a commerical on television for an arthritis drug - I think it is Cerebrex or something like that. In the commerical you see a whole series of active people smiling and doing things and they keep saying over and over "ask your doctor!" The last frame the smiling person says "Ask your doctor, HE knows" Why could they not have had the person say something progressive like "SHE knows" or at least something that did not fuel the stereotype like "Ask your doctor, your doctor knows!"
We must all fight stereotypes and this was just the latest example that I have seen and it is reflected in my little girl's mind. I know that I do it and I see it all the time in my professional life but if we talk about it then we might slowly push the ball a little further down the field and sometime soon little girls will not have a preconceived notions about their future vocations.

Perspectives - the Age of Innocence

2006-05-26T19:26:00.000-04:00

Everybody that is involved in a mediation or arbitration has a different and unique perspective. Each person observes different things, responds uniquely to events and has different concerns. Sometimes when I am in the midst of a mediation or arbitration , I am so focussed on my own perspectives that I forget to take in (or try to take in) the unique perspectives that the participants are having. Of course sometimes these perspectives are communicated verbally, other times they are not and often I have to probe to entice the perspective out.
A recent car ride with my two children retaught me the lesson of perspective. My seven year old son asked me how long it takes to become an "avocat" (French for lawyer). I indicated that I studied for six years, worked for one and then went back to school for another six months to become a lawyer. He wants to be a computer programmer when he grows up. He asked how long it takes to be a computer programmer. Not sure of the answer, I said at least three years, maybe four or five. My daughter (who is five) chimed in that her best school friend wants to be a "Mom". Not surprising given that the girl's mother is about to have her fourth child. I asked her what she wanted to be and she replied "Dad I want to be a superhero!". The unique perspective of a five year old. Fortunately, unlike my son she did not ask how long it takes to become a superhero. I would have had no idea how to respond.

The word gets out!

2006-05-26T19:12:00.000-04:00

I was fascinated and honoured to be listed in the blogs written by mediators that were listed in the National Institute for Advanced Conflict Resolution Annual Mediation Blog Roundup. It can be found here. I heartily endorse the selection of Diane Levin's Online Guide to Mediation as the top blog. You can find a link to her blog over on the right. I also really enjoy the second place blog Mediator Blah...Blah. I will put a link up for you to it as well.
It is quite weird to see a competition of mediators. I would think that most of us have moved from representing a party in an adversarial context to trying to resolve disputes because we are not as competitive as others (those who know me will know that is not necessarily true of me). Nevertheless, the list is fun and I will check out all of the sites - at least one of them is one with which I am not familiar!

Children's Book Recommendation

2006-05-18T10:41:00.000-04:00

I recently obtained a copy of William Kaplan's excellent children's story "One More Border". Bill is an arbitrator and mediator. He is also a prolific writer. He is also a friend of mine (best to admit your bias as an arbitrator before someone else brings it up)

The book tells the story of Bill's father as a boy leaving Lithuania with his family in 1939. Fleeing the Nazis, the story traces the journey of the family to Canada. I read it last night to my seven year old son who was absolutely gripped by it. I highly recommend that you pick up a copy, read it to a child and discuss the important issues raised.

Mediation tip #5 - Getting Agreement - Part 3 - a trick of the trade

2006-05-12T11:13:00.000-04:00

Calling it a trick is not doing it justice. As a mediator, I am often faced with the situation that I know that the parties want to resolve the matter but for various reasons they are not willing to move towards the deal themselves. It may be because of a perception that they do not want to appear to be weak to the other side. It may be because they fear that if they move too far that the other party will not move again and that they will have to fully compromise to the other party's position. What I frequently do in this situation is what I have called the "blind taste test". I tell each party what the deal is going to be. If I think that there are issues that may be contentious even after a deal is reached - such as the form of the release to be signed - I work all of those out beforehand. I then present the deal to each side. I tell each side that they will only find out the answer of the other party if they themselves say "yes" to the deal. That way, a party can move safely to the position of accepting the deal without worrying that a new "floor or ceiling" has been created by their accpetance. If there is a "yes" from every party, there is a deal. If a party says "no", then that party does not find out the position of any other party. In a situation where there are only two parties, a party that says "yes" will know the position of the other party - there is either a deal or no deal which reveals the decision of the other party but the party that says "no" will not know whether the other party said "yes" or "no".

In multiple times using this method, I have achieved a deal in all but one case. It is obviously very important for me to choose carefully something that I anticipate will be accpetable to all parties when I present the deal. In the one case where this method did not work, there was a fact that was revealed only after I had told each party the deal that impacted the willingness of one of the parties to say "yes". A deal was actually achieved because once I explained the new fact and it was accepted, that party realized why the other party had said "no" and adapted its settlement position.

There are some further nuances to the "trick of the trade" which I would be pleased to explain to anyone who wants further information.

Mediation tip #5 - Getting Agreement - Part 2

2006-05-08T17:31:00.000-04:00

Well now that you have the advice not to be a Zax - how do you get to an agreement? There is simply no single, proven way to move parties from positions to resolution. Almost always, it requires compromise by both parties, but even that is not always necessary. I have been involved in mediations where one party intends to have the other party simply agree with its position - there is no other alternative that will be considered - and I HAVE SEEN THAT WORK! I would say, however, that it is extremely unlikely to work.

As a mediator, I tend to be quite evaluative, other mediators are less so. I will tell parties what the possible and likely outcomes are if the matter proceeds - often without even being asked for my view. I think that one of the most important (and underappreciated) aspects of mediation is momentum. If I can have the parties moving towards a settlement and believing that a settlement is possible, then I have a much better chance that I will achieve that settlement. It is my experience that most parties want to settle - the litigation process is not one that most people enjoy and they are happy to be out of it.

One important tip is to have your settlement documents ready before the mediation begins. I have seen a number of mediations fail because of the length of time it took to prepare settlement documentation. Once the parties have settled, they are ready to sign the deal - do not delay in getting it done. I like to see the document prepared quickly (ideally this is done jointly by the lawyers) and then taken to each of the litigants for review. Once reviewed the changes should be quickly made. If there is a party that is likely to be reluctant to sign - have that party sign first. I have been involved in a number of mediations recently where an individual seemed to enjoy the fact that everyone was inconvenienced by the length of time it was taking that individual to decide whether to sign.

Before leaving this tip, I want to go back and share with you one "trick of the trade" in my next entry - Mediation tip #5 - Getting Agreement - Part 3 - One of the solutions when you get stuck!

Stanley Cup and Minor League Umps

2006-05-02T14:21:00.000-04:00

I am thoroughly enjoying the NHL playoffs. What makes it so interesting to me is that a penalty is a penalty regardless of when it happens. It makes the game more interesting, more high-scoring and more consistent. In baseball, the rules do not change because it is the playoffs and the bottom of the ninth and in my view the rules should not change in hockey. Not a big fan of sports that tinker to much with their games but this is one change I am appreciating.

Noticed that the minor league umpires in baseball reached a tentative settlement with the assistance of a federal mediator but then the deal got turned down by the umpires. I would love to hear from anyone who can give me more details on why this happened and what the likely next steps are to be? I know what would happen here in Ontario (or by that I mean the likely outcomes)

JKG - A brief appreciation

2006-05-02T05:36:00.000-04:00

I read with great interest the obituary of John Kenneth Galbraith in Monday's Globe and Mail. All right, a brief tangent here - I read obituaries every day. I read the death notices every day. I enjoy watching funerals on television of famous people. I find the ways in which different cultures "celebrate death" interesting.

Anyway - back to JKG. I want now to read a good biography of him because from what I read he led a very interesting life. Born a Canadian, he left a farm to go to College in Guelph, Ontario (another digression here - Guelph is the county seat of Wellington County where all my relatives come from (well where they come from to some extent after they hopped over the pond but that is a longer story)), and eventually made his way to Harvard. After moving through a couple of other institutions and jobs, he made his way back to Harvard where he taught for over 30 years - just a small Ontario town boy teaching at one of the world's most prestigious universities!

For us in ADR, he coined one of the all-time great lines as part of JFK's 1960 presidential campaign. He said, "Let us never negotiate out of fear, but let us never fear to negotiate".

Quite a life and quite an obituary.

Mediation tip #5 - Getting Agreement - Part 1 - Don't be a Zax

2006-04-27T12:46:00.000-04:00

One of my very favourite children's story is The Zax by Dr. Seuss. It is a nice short story to read at bedtime and it has a beautiful simple message about resolving conflict. With due credit to Dr. Seuss, I am going to set it out in its entirety here and then I will come back to the process of "Getting Agreement".

One day, making tracks
In the prairie of Prax,
Came a North-Going Zax
And a South-Going Zax.

And it happened that both of them came to a place
Where they bumped. There they stood.
Foot to foot. Face to face.
"Look here, now!" the North-Going Zax said. "I say!
You are blocking my path. You are right in my way.
I'm a North-Going Zax and I always go north.
Get out of my way, now, and let me go forth!"

"Who's in whose way?" snapped the South-Going Zax.
"I always go south, making south-going tracks.
So you are in MY way! And I ask you to move
And let me go south in my south-going groove."
Then the North-Going Zax puffed his chest up with pride.
"I never," he said, "take a step to one side.
And I'll prove to you that I won't change my ways
If I have to keep standing here fifty-nine days!"

"And I'll prove to YOU," yelled the South-Going Zax,
"That I can stand here in the prairie of Prax
For fifty-nine years! For I live by a rule
That I learned as a boy back in South-Going School.
Never budge! That's my rule. Never budge in the least!
Not an inch to the west! Not an inch to the east!
I'll stay here, not budging! I can and I will
If it makes you and me and the whole world stand still!"

Well...
Of course the world didn't stand still. The world grew.
In a couple of years, the new highway came through
And they built it right over those two stubborn Zax
And left them there, standing un-budged in their tracks.

There is so much to love here - the unexpected ending, the careful manner in which Seuss notes the escalation of the conflict. It really is better with the pictures and if you have children the right age can be found in a four story book entitled - The Dr. Seuss Story Book. There is another wonderful piece in there called the Lorax which is all about environmental degradation.

Of course, the easy solution to the Zax is to get them to both budge one inch in opposite directions at the exact same time but as someone who resolves conflicts professionally - this is not always as easy as it sounds.

ADR Blawgspots - Online Guide to Mediation

2006-04-19T18:46:00.000-04:00

I am really enjoying doing this blog or as we call it in legal circles a "blawg". One of the reasons for my enjoyment is there is a community of people out there in the ADR business that are doing the same thing and I love reading about and learning from their different perspectives/opinions. A site that I think is one of the best and consistently interesting is Diane Levin's Online Guide to Mediation. I have added it on the left as a link and I highly recommend that you click on over and have a good read!

Mediation tip #4 - Marshalling the Facts - Part 2

2006-04-17T16:19:00.000-04:00

In this part, I would like to write about the reliability of memory. Recently, I was having a nice discussion with another arbitrator. Our conversation made its way to September 11, 2001. For my generation, this is our "Kennedy assassination". People remember exactly where they were when they heard the news and people stopped what they were doing and concentrated on one event (or in the case of 9/11 a series of events). But how well do they remember the details (the facts if you will) of what happened? I remember reading shortly after 9/11 about a study that was going to be conducted about memory. A large group of people was going to be studied in relation to the memory of the events of the day. Over time they would be interviewed about what happened. What was the airline that hit the first tower? What was the flight number? How many people were on board? How many hijackers were there? Where did the flight originate? Where was it supposed to be headed? etc.

The arbitrator I was speaking with said that he did not recall that the second tower to be hit came down first. It is a bit illogical that the first tower remained standing well after the second tower to be hit crashed to the ground but that is what happened. Now I hazard a guess that on September 11 almost everyone would have remembered the order in which the towers fell correctly. A couple days later some would have forgotten. Now almost five years later, I expect most people have forgotten.

What does this mean for us working in ADR? I approach the facts carefully and with great caution. People forget not just small details but often quite significant detail. Yet, some people can insist with great fortitude that their version of the facts is correct.

A second issue about fact that I think is often misunderstood is that two people can be in an interaction and have very different recollections as to what happened. It is not that one person is lying or that one person has a different recollection - it is that they experienced the exact same event and yet perceived it differently - thus coming away with a difference as to the facts - how then can we say who is right about the facts.

When I am mediating - the facts are often the most interesting aspect of the case for both myself and the parties. However, my approach to the facts is often quite different from the parties. I come to the table with an awareness that a recollection is just that - a recollection - and that there may have been a difference as to what happened even if we had been there at the time of the interaction to ask the parties.

The facts of a case usually have the largest impact on the outcome of a case. Parties, however, should be careful not to get too caught up in their version of the facts as the other version may also have happened even if that version is illogical or inconsistent with your own version of the facts.

Coming near the end now - next up - working out the deal!

The Baseball Weekend

2006-04-09T21:01:00.000-04:00

For years I have participated in friendly sports pools - mostly hockey and baseball. Many many years ago, I started playing rotisserie baseball (now more commonly called fantasy baseball). I will not use this space to explain it. Last year, I was lucky enough to be invited to take over a franchise in a 16 team Diamond Mind Baseball League. Each team has a 50-man (can use gender specific language here (for now)) major league roster and a 50-man minor league roster. Our teams play actual simulated baseball games against each other in the simulations of big league parks. It is a lot of fun. Each year the owners get together to prepare for the upcoming season. The amateur draft is the highlight. With 800 players already under the contract, the usual information about who are the best minor league players is almost entirely useless. Of a typical Top 100 list - almost all of the players will be previously owned!

So when you go prospecting in this league - you are going deep. Because of a poor record and lucky bounce in the draft lottery - I selected first. I took a 17 year old Venezuelan shortstop! With my second round pick I took the top-rated high school junior!
And with my last pick I took a 16 year old Cuban phenom. My son attended the draft with me and I had to explain to him how the Cuban kid may never be able to help us because of the rules restricting Cuban nationals!

It will be alot of fun over the next five to ten years to see if anything comes of any of them - for the record - the names are Elvis Andrus, Robert Stock and Dayan Viciedo - unless you are the keenest of mionr league baseball fans I think it is safe to say - you heard it here first!

Beisbol's Back!

2006-04-02T15:18:00.000-04:00

With the first crack of the bat at a little after 8:05 EDT, the major league baseball season will be up and running. What I think now is my favorite sport will be back under way! As a Blue Jays fan, I am quite worried about this season. Expectations have been raised after a spending spree but I do not think this team is anything more than a .500 team in this division. I hope I am wrong.

Interestingly, almost nobody is talking about the fact that the Collective Bargaining Agreement is up after the end of the season. I hope that there will not be a work stoppage one year from now as I anticipate the start of the 2007 season.

I plan on attending my first home opener on Tuesday night since I attended the first ever for the Jays in April 1977. My own interest in baseball is accentuated by my Diamond Mind team - the Boardwalk Portsiders with my baseball draft weekend coming up next Saturday and Sunday - hopefully my son will join me on Sunday as we look deep into baseball's minor leagues for the next Jason Bay or Roger Clemens

Mediation tip #4 - Marshalling the Facts - Part 1

2006-04-02T10:07:00.000-04:00

Every dispute is based on "what happened". The person (and when I use person I am including any party that could commence an action including non-persons!) who starts the formal legal process is doing so because of a concern (it can often be put much higher than that) about "what happened". The person feels aggrieved. Often (in fact I would say usually) the person against whom the matter is brought also feels aggrieved. That is because of "what happened". In a mediation, the parties want to tell the mediator "what happened". We call this the facts!

Usually I have a pretty good handle on the facts before the mediation commences because the parties have sent me a brief of the case. If not, the parties can "bring me up to speed" quite quickly. Questions that I have about the facts will usually (I keep using that word because there is very little standard about the conduct of a mediation once it gets going) be asked by me in one of the first caucuses that I have with the parties. In spite of that, parties want to tell me all of the facts - the reason why this is happening in the first place.

The parties frequently disagree about the facts. In a mediation, I try to determine which facts are most likely to be relevant in an eventual judicial determination (what will the judge care about) and try to determine the extent of the difference on those facts and whether I can assist either or both parties as to the likely outcome of that factual determination. It is the outcome of the factual determination that will likely determine the case. Once the facts are determined, the judge will apply the law to the facts.

What should you do about the facts in a mediation? You should try and determine the "key facts". You should let the mediator know why it is that you think that the "key facts" will be determined in your favour. Are there any documents that you can show to the mediator? Is there a witness who will be called? Is there some other fact that demonstrates the problem with accepting this particular fact?

When I get to the mediation, I have read what the parties have provided to me. I assume where there are factual differences that each party has an equal chance of "proving their facts". If you can demonstrate to me that your key facts are more likely to be accepted and why, then I can let the other party know that "based on what I have seen/heard" that it is likely that a certain factual difference will be determined in a certain way. I can then talk about what that might do to the likely outcome of the matter should it proceeed to a judicial determination. In a mediation, you often want to convince the mediator and through the mediator (or directly) the other side that the factual determination will go positively for your side.

Mediations are all about risk versus certainty. The matter can be settled today and the result is certain. There is certainty in the outcome and no risk left for either side as to outcome. The matter can continue and there will be risk (for both sides) as to the outcome. That risk in relation to the outcome is most often a product of the resolution of the differences in respect of the "key facts". By impressing upon the mediator, the likelihood that the "key facts" will be determined your way, you change the risk of the outcome for the other side and assist the mediator in helping you to achieve a resolution.

Having waxed on about the importance of the facts, my next tip will be a cautionary note about the unreliability of facts! That is part of what makes this whole area so wonderful. On the one hand I can blog about how vital the facts are to the process and yet promise you that the next blog will be about how facts are inherently unreliable.

The first day of Spring and Mistakes about fact

2006-03-23T18:03:00.000-05:00

Well - we made it through another Winter with Spring coming to us on March 20 this year. I made the mistake of announcing to my children on March 21 that it was the first day of Spring only to be corrected by my son that "yesterday was the first day of Spring". Well, I think it is important as a mediator or an arbitrator to admit and acknowledge when I make a mistake about a fact. I know that my son follows the changing of the season much more closely than I do, so I was pretty certain that he was right. I told the story of getting the date wrong to a couple of people and they all said that Spring came a day earlier than normal this year. Having established from a couple of sources that I was indeed incorrect about the first day of Spring, I have accepted the fact that I was simply wrong about my fact.

Being wrong can mean very different things for a mediator than it means for an arbitrator. If I get a fact wrong during a mediation (and of course it has happened), I can be corrected and I can move on. I can not immediately remember a situation where getting a fact wrong in a mediation has ultimately had any impact on the outcome of the mediation. It has certainly caused a problem here or there but as I accept that I can make a mistake - when it is pointed out I will accept it and move on to fix any problem that may have been created by my mistaken knowledge. Once doing so, I can work to get the process back on track toward resolution.

When I work as an arbitrator, being mistaken about a fact can have much more serious consequences. If I can determine my mistake before I write the decision, I can be corrected. That is part of the reason that I like to "where and when possible" engage the parties in what I am thinking as the case proceeds. I think it helps them to know what I am thinking but it also has a secondary role of making sure in my analysis that I am either not missing something or proceeding on the basis of a mistaken fact. If I do not find out about my mistake until after the decision is written and sent out - there is nothing I can do about it at all at that point.

I was wrong about which day was the start of Spring! When I found out - I acknowledged it. I am going to be really careful before I make any pronouncements to my children about the commencement of Summer.

Mediation tip #3 - Opening Statements

2006-03-18T11:21:00.000-05:00

I had a very busy week and as such have not had much time to add to the blog. As it was March Break for schoolchildren here in Toronto, I expected that many of my cases would not go ahead but they did.

The next Mediation tip is about Opening Statements. Traditionally, a mediation starts with a joint session in which all the parties and the mediator get in one room. After opening comments by the mediator, the parties are invited to make an opening statement. This may be made by the solicitor representing the party (i.e the Plaintiff), the party him/her/itself or both. You need to think about the purpose of the opening statement - who is it for? The client? The other party? The mediator? What needs to be communicated? What else might be communicated? I find that all too often the opening statement by the lawyer is for the client. Instead, it should be used as an opportunity to persuade the mediator and/or the other side about your position in the case. A good opening statment is measured, direct and concise. It should focus not only on the strengths of the case but deal with the weaknesses. It might also focus on the reasons why resolution would be superior to ongoing litigation. I think the best opening statements also indicate that there is a willingness to settle and usually involve some sort of acknowledgement of the position of the other party.

Mediations are stressful for the participants, even before they get going. An opening statement can work to reduce that stress and put the mediation on a strong footing towards resolution. I have found recently that people are interested in opting out of having an initial joint session and face to face opening statements - they find that the joint session is at best a waste of time and at worst counterproductive. I will write about having or not having a joint session in the my next mediation tip - Whether and When - The Joint Session.

Blogs and Libel suits

2006-03-18T11:14:00.000-05:00

This morning's National Post has an article in it about the increase in libel suits coming from comments on Websites. While blogs are all about personal opinion, it strikes me that all of us have to be cautious about what we say about others - we are in effect "publishing" each and every time that we blog. If in publishing, we are negative about others - we potentially open ourselves up to a lawsuit. Enjoy blogging but be cautious about what you say - once it is on the Internet anyone can read it!!

Sunday New York Times and Blogging

2006-03-11T16:15:00.000-05:00

One of the small pleasures in my life is the Sunday New York Times. As a person who loves to read newspapers, the arrival at my doorstep every Sunday morning of the Sunday New York Times is a happy event. My two favorite parts of the paper are the Sports Section and the The New York Times Magazine (although I tend to read almost everything every week). In the Magazine, I turn first to the weekly column by William Safire "On Language". As the magazines piled up a little over my vacation, I am just now reading the February 19 issue. In that issue, Safire wrote about the language of blogging. I was interested to learn that the phrase "blogosphere" is credited to William Quick who first used it on January 1, 2002 in his blog - the Daily Pundit (note to self - should look at that blog). As well, I learned the meaning of the blog terms - "link love", "tagged" and "deliciousing". I am happy to have learned more about the origins and meanings of some of the unique words used in blogging. Anyone interested in language would enjoy the weekly article by William Safire "On Language" in the Sunday New York Times Magazine. Tomorrow morning, I will get another Sunday New York Times!!

Mediation tip #2 - Mediation styles?

2006-03-07T13:00:00.000-05:00

Like lawyers and like people in general, mediators have styles, approaches, perspectives, strengths and weaknesses. I once attended an Advocate's Society's seminar in which I was invited to be a guest mediator as students worked on mediation skills. Of the six mediators who were there, three of the mediators did the mediation without ever splitting up the parties into different rooms and three of us almost immediately split the parties into different rooms and conducted the mediation by way of "shuttle diplomacy". Interestingly, all the mediators were able to assist the students in achieving a resolution but they had obviously used very different techniques to do so. I was a "shuttle diplomacy" mediator. I am now finding in my own mediations that oftentimes the parties do not even want to do a joint session at the beginning of the mediation. There does not appear to me to be any direct positive or negative correlation between doing a joint session at the commencement of the mediation and not doing it. I think that there are cases where one is necessary and there are cases where it would be obviously counterproductive. So while mediators will hopefully have many common characteristics such as the ability to listen well, work well with people, synthesize infomation and a sense of humour, the manner in which the mediation will be conducted will vary widely from mediator to mediator and even from one mediation to another mediation with the same mediator. My best tip here is to know or learn the style of the mediator that you will be working with as it will help you to achieve a positive result. Next up - Mediation Tip #3 - Opening Statements.

Odds and Ends

2006-03-07T12:45:00.000-05:00

Just back from one week of vacation and there are so many things to catch up on - so here are some really quick odds and ends.
1. The Canadian Olympic team ended up doing quite well finishing with 24 medals (one off the prediction of 25 but most pundits would have given the Canadian men's hockey team at least some sort of a medal) and in third place overall - would be pretty neat for little Canada to actually win the Olympics when they are held in Vancouver/Whistler in four year's time.
2. My thanks to Michael Fitzgibbon and Diane Levin for their kind welcomes to me last week to the world of the blogosphere. Michael's blog can be found here and Diane's blog can be found here. They are both well worth a visit!
3. I will be preparing and posting Mediation Tip #2 soon. I have already had someone come to a mediation and note that he read Tip #1 before coming to the mediation. It is my hope that these tips will help to demystify the whole process for people and make the entire mediation experience more positive.
4. I note with sadness the passing of Hall of Famer Kirby Puckett. As a person whose passion for watching baseball started with the inclusion of the Toronto Blue Jays in the American League in 1977, Kirby Puckett is the first Hall of Famer whose career I was able to enjoy from beginning to end to die (as best as I can recall). He was one of those players who if you saw him play - you will never forget him - short and barrel-chested - he did not look like a ballplayer but he could run like the wind and hit very well and he did it all with the smile on his face that is far too rare. You could tell that he really enjoyed what he was doing and the fact that he was making a lot of money playing a child's game. It seems that after his early retirement from baseball for health reasons that things did not go so well for Kirby - but I will remember him not as one of the best ballplayers I ever saw play but as one of the most entertaining. There is a nice and balanced obituary at one of my favourite websites - BaseballProspectus.com - click here
That's it for now - thanks for all the positive feedback!

Sport and Arbitration

2006-02-25T07:27:00.000-05:00

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!

Olympics

2006-02-25T07:24:00.000-05:00

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

Olympic Hockey

2006-02-22T10:51:00.000-05:00

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

2006-02-22T10:41:00.000-05:00

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?

How Swede it is!

2006-02-17T13:39:00.000-05:00

Sometimes...my 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. Sometimes...games 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)

2006-02-17T09:38:00.000-05:00

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!

Olympics - Positive Drug Test!

2006-02-14T21:23:00.000-05:00

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

2006-02-14T18:43:00.000-05:00

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.

An update

2006-02-10T22:35:00.000-05:00

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

Olympics, Disputes and Arbitration

2006-02-10T09:17:00.000-05:00

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.

Super Bowl Sunday and Gambling

2006-02-05T09:35:00.000-05:00

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!

Thoughts on bargaining

2006-02-04T13:14:00.000-05:00

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.

Keeping Abreast of Changes

2006-01-28T13:15:00.000-05:00

One of the most valuable tools that I use to keep track of changes in the law is the Supreme Court of Canada newsletter published by Eugene Meehan. When the Supreme Court of Canada makes a decision, you can count on this newsletter to give you a synopsis within a day or so.
Yesterday's newsletter contained a review of the Young v. Bella decision in which the Court upheld the jury award of $430,000 non-pecuniary damages in a negligence case. You can subscribe to the free newsletter here.

Have a great weekend!

Ontario Health Premium - The Great Debate

2006-01-26T14:49:00.000-05:00

One of the hottest topics in labour law in Ontario is the issue of the Ontario Health Premium and whether an employer is responsible for paying the premium on behalf of unionized employees whose union negotiated that the employer was responsible for paying the old OHIP premium. Arbitrators have split on the issus, the Divisional Court has upheld two arbitration decision and now the Labour Law section of the Ontario Bar Association is hosting an evening of discussion with two of Ontario's most eminent counsel - Howard Goldblatt of Sack Goldblatt Mitchell LLP and Doug Gray of Hicks Morley Hamilton Stewart Storie LLP. If you are interested in hearing some excellent speakers talk on this hot topic - consider coming to the Dinner on February 16, 2006 at 6:00 p.m. For registration navigate to the oba here and find Labour Law - Ontario Health Premium - The Great Debate.

Other interests

2006-01-25T21:32:00.000-05:00

Other than my professional interst in mediation and ADR, I am passionate about my family (wife, Natasha and children, Clarke and Karina - my children would want me to include the family cat - Jesse)and sports (most particularly baseball and hockey and in particular Diamond Mind Baseball). Clarke is 7 and is very interested in karate, math and space. Karina is 4 and is very interested in art, crafts and her friends. They keep me young in body and spirit.

Just getting started....

2006-01-25T21:11:00.000-05:00

Welcome to my blog. It is my hope that you will come here frequently to receive up to date views and information on ADR and mediation generally. I intend to inform and interact with you about current issues, trends and ideas. Please feel free to drop me a line or to comment on anything.