Enter Title

Arbitration

Mediation

Misc

Cases

100

What is Med-Arb?

Med-Arb: starts as a mediation and transitions into an arbitration if it doesn’t go well

100

Which type of mediation focuses on repairing the dysfunctional relationship between parties as a primary goal, alongside resolving the dispute?

Transformative Mediation

100

Mediation defined by what case...

SCC Bombardier Inc v Union Carbide Inc

100

In what provinces do judges do not have the power to make orders at case management meeting unless the parties agree to be bound by decision

Nova Scotia

100

3 types of pre-trial conferences in BC:

(1) Case Planning Conference
(2) Trial Management Conferences – addresses issues related to the trial
(3) Settlement Conference

200

3 Types of Arbitration Styles

(1) Evaluative Mediation: Mediator will help parties focus in on the substantial issues and will comment on the merits of that issue
(2) Facilitative Mediation: Mediator will help bring issues to foreground and focus them
(3) Transformative Mediation: Mediator will work w parties to repair their dysfunctional person or business relationship and hopefully resolve the dispute

200

Defining Features (4)

Negotiation with a neutral third party
It is confidential
Third party is impartial
Outcome not binding unless it is an independently valid contract

200

What can create liability for a mediator in their personal capacity?

Generally: If the mediator failed to keep info in confidence, was biased, did not declare a conduct or engaged in some kind of unauthorized practice of law in their conduct you can go after than mediator.
Mediator who doesn’t follow agreement might face consequences for breach of contract

200

Under Ontario's *Apologies Act*, what is the consequence if a statement contains both an expression of regret and an admission of a material fact?

(Coles v Takata) When determining if an expression is an apology (and therefore inadmissible) the court will consider if the expression is admissible evidence as
(1) an admission of a material fact,
(2) an admission of a fact from which liability can be inferred,
(3) or an admission of liability
by undertaking a contextual analysis of the D’s expressions and exclude from evidence the part of evidence that constitute an apology, but admit into evidence the parts that were non-apologetic admissions.

200

In ON under Arbitration Act, written submissions need to follow guidelines

Must provide facts relied on, points in issue, relief sought, position of the parties

300

Arbitration introduced in the ___s

80s

300

What is the main advantage of conciliation over mediation?

A mediation-like process, but where the decision can only be interfered with through arbitration or litigation (typically used in construction)

300

CBA ADR taskforce (1989) with two main recommendations:

(1) Integrating ADR into traditional legal system
(2) Focus on legal education to enable lawyers to implement the integration

300

In what province is there is a positive obligation to participate in the dispute resolution process

Alberta

300

Judicial Role of arbitrators because...

Always a dispute
Most of the time parties present submissions
Binding outcome

400

What are the 4 indicia of arbitration?

(1) Dispute/difference which has been formulated in some way or another
(2) It has been remitted by the parties to the person to resolve in such a manner that they will exercise a quasi-judicial function
(3) The parties must have been given opportunities to present evidence to support their claims
(4) A decision is rendered, the parties have agreed to accept this

400

ON Commercial Mediation Act applies to all commercial mediations except:(name at least 2)

Relating to the formation of a collective agreement
Computerized or other forms where the mediation is not conducted w an individual as the mediator
Actions taken by a judge to arbitration in the course of proceedings
Mediations that fall under RCP or COJA.

400

Is it possible to be bound to agree on the terms at a future date? Cite authorities

Generally No (Walford v Miles)
EXCEPTION: You can define what “good faith” mean ...Yes – might include we are going to share X documents by X date, or explore X facts by X dates

400

What are the 3 types of legislative ombudsperson (power given by statute) who report findings + make reccos back to legislators/departments?

Federal, Procurement, Provincial

400

Ratio: Regina v Williams

recognized systematic biases in aboriginal persons in the criminal justice system

500

Can you name 3 reasons to challenge a submission to arbitration?

Incapacity
Arbitration agreement can be uncertain
Subject matter might not be appropriate
Agreement doesn’t apply to dispute in question
Fraud/misrepresentation: If main contract was invalid, the arbitration agreement could still be valid (not necessarily frustrated)
Bankruptcy/Insolvency
Notice: If notice provisions are not followed, the failure to submit is the equivalent to waiving the issue
Non-compliance with pre-arbitration steps
Unconscionability (Uber Technology v Heller)
Arbitration agreements can require the parties to act in “good faith”

500

Can a mediation order/document be enforced by the court and how?

If you get a signed contract at mediation (signed, independent legal advice, created by lawyers etc.) it is enforceable and it can be taken to court (where you seek summary judgement) and they will ask the court to adopt it

500

Can non-lawyers be mediators?

CANNOT practice law (i.e. make contracts) - They can make a report on what happened and present it to the parties to be turned into a contract

500

When can a lawyer's ability to bind a client in mediation be questioned? (3 Ways)

The solicitor has limited authority and the opposing side has knowledge of the limitation --> must be both a limited retainer and knowledge of that by other party
The courts intervention by the making of an order is required
The client is under a disability

500

First aboriginal court established 25 years ago in _____

Tsuu T’ina First Nation Court - Calgary