Perspectives from a Mediator/Arbitrator

Monday, September 22, 2008

Why no blogging Steve?

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...

Monday, February 18, 2008

Baseball Arbitrator

I am indebted to 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!

Monday, September 17, 2007

The Election and Proportional Representation

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

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

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?

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!

Tuesday, January 30, 2007

Arbitration tips!

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!

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!

Thursday, December 14, 2006


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.

Friday, December 08, 2006

TFK, Holiday parties and Wii

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!

Tuesday, November 07, 2006

Elephants and Elections

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.