ADRIC 2022 Learn about - LEADING DISPUTE RESOLUTION IN CANADA - ADR Institute of Canada
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Vol. 31, No. 1
Spring 2022
Learn about
ADRIC
2022
Annual National Conference
page 5
LEADING DISPUTE RESOLUTION IN CANADA
SINCE 1974
1 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNAL
VOL. 31, NO. 1 SPRING 2022
CONTENTS
03 Message from the Editor
ADR Institute of Canada Inc.
....................................... Genevieve A. Chornenki, LL.M.(ADR), C.Med, C.Arb
LEADING DISPUTE RESOLUTION IN CANADA
04 President’s Message
.............................................. Elton Simoes, MBA, MDR, IDP-C, C.Med, Q.Arb
234 Eglinton Avenue East, Suite 407
06 Listen In: A Virtual Conversation with Journal Editor
Toronto, ON (Canada) M4P 1K5
Jennifer Webster and Fellow Mediators
............................................................................. Jennifer Webster, B.A., LL.B. 416-487-4733 | 1-877-475-4353
15 Increasing Police Trust and Effectiveness through journal@adric.ca | www.adric.ca
Conflict Management Training
...................................... Richard Moore LL.B, C.Med, CFM, C.Med-Arb, C.Arb Editor-in-Chief: Genevieve A. Chornenki,
LL.M. (ADR), C.Arb,
19 Making Sense of Conflict—The Role of Theory C.Med, Toronto
................... Shelagh Campbell PhD, Djina Pavlovic MHRM, BAH, Erin Valois,
Editorial Board: Shelagh Campbell, PhD,
Titilope Adesina B.Sc, MBA, MA, CAMS, PHRI, PMP CHRP, CHRL, University of
Regina
26 Book Review: Mediation and Popular Culture
Eva Malisius, MA, PhD,
......................................................................................... Pat Bragg, B.A., B.Ed Q.Arb,
27 Book Review: Don't Lose Sight: Royal Roads University,
Vanity, incompetence, and my ill-fated left eye Victoria
Rick Russell, BA, LL.B,
........................................................................ Heather Swartz, C.Med, M.S.W.
C.Med, C.Arb, Agree
29 Book Review: International Commercial Arbitration: Dispute Resolution,
Dundas, Ontario
A Comparative Introduction
Jennifer L. Schulz, S.J.D.,
..................................................... Eric Morgan, Q.Arb, Hon. Barry Leon, CIArb C.Med, Winnipeg
33 Congratulations to the 2021 winners of the Jennifer Webster, BA,
Lionel J. McGowan Award of Excellence! LL.B, Jennifer Webster
Mediation Arbitration
36 ADRIC is Grateful for the Support of its Corporate Members Facilitation, Toronto
37 Congratulations to our New Designation Recipients! Editorial Board Biographies:
38 Lionel J. McGowan Awards of Excellence in Dispute Resolution - https://adric.ca/useful-links/journal-articles/editorial-board/
Call for Nominations for 2022 Journal Coordinator:Brenda Lesperance
Back Issues:
ADRIC Professional Members Offer http://adric.ca/resources/journal-articles/
ONLINE
VIDEOCONFERENCING
for all Your Dispute
Resolution Needs
2 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNAL Également disponible en français :
Learn more.
adric.ca/fr
Message from the Editor
Welcome to the spring 2022 issue of the analysed the recent conflict at Rogers
Canadian Arbitration and Mediation Communications Inc. using that theory.
Journal. In this issue, our contributors Pat Bragg reviews Mediation and Popu-
chose to write about contemporary is- lar Culture by Jennifer Schulz, which she
sues, both social and professional. Edi- describes as “a fun, dense, and impor-
torial board member Jennifer Webster tant read about mediation.” Heather
convened a virtual roundtable with ADR Swartz reviews my recent book, Don’t
practitioners Dominique Panko and Lose Sight: Vanity, Incompetence, and
Marc Bhalla to explore what difference my ill-fated left eye, which she thought GENEVIEVE A. CHORNENKI,
LL.M.(ADR), C.MED, C.ARB
technology has made to the mediation “provoked both professional and per-
Genevieve is the author of Don’t Lose
process, especially when the pandemic sonal reflection and insight.” And Inter-
Sight (2021) and co-author of Bypass
inhibited or prevented in-person ses- national Commercial Arbitration: A Court (2015). She holds a Certificate
sions. Are asynchronous, virtual media- Comparative Introduction by Franco in Creative Writing from the Univer-
tions a bane or a blessing? Practitioner Ferrari and Frederich Rosenfeld was sity of Toronto and a Publishing Cer-
tificate from Ryerson University. She
and trainer Richard Moore discusses reviewed by Eric Morgan with addi-
was inaugural chair of the Ontario Bar
how conflict management training can tional commentary by Honourable Association’s ADR section and serves
increase trust and confidence in the po- Barry Leon who found it to be “a help- on ADRIO’s C.Med accreditation com-
lice. The key, he maintains, is having ful resource to arbitration practitioners mittee. www.genevievechornenki.com
them recognize, accept, and resist the in any jurisdiction, including Canada.”
tendencies that research attributes to Visit our new book reviews webpage
individuals with “elevated” power. Edi- here. Thank you to all who made
torial board member Shelagh Campbell We hope readers will enjoy this issue possible: our contributors,
introduces readers to Gulliver’s Process and benefit from the material pre- the helpful staff at the ADRIC office,
Theory of Power and shows how Djina sented here, and we urge everyone to our volunteer editorial board, and to
Pavlovic, Erin Valois, and Titilope share this issue with colleagues, you, our readers. Please be in touch.
Adesina, students in the Masters of clients, and friends. Past issues of the Your feedback, submissions, and
Human Resource Management and journal can also be found on CanLII at pitches are always welcome.
Masters of Administration – Leadership https://www.canlii.org/en/commentary/ Genevieve A. Chornenki
programs at the University of Regina, journals/43/. Editor-in-Chief
ADRIC's Two-Part
Correspondence
Course in Arbitration
Covers concepts and procedures of contract
and tort law, arbitration acts and procedures,
evidence and court control of arbitration.
Fulfills the educational requirements for ADR
Institute of Canada's national designations of
Qualified Arbitrator (Q.Arb) and Chartered
Arbitrator (C.Arb).
3 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNAL
President’s Message
As fate would have it, I write these words on Arbitration and Mediation topics and
on the second anniversary of the pan- we proudly share those with all practi-
demic. These two years feel like a life- tioners, parties, and counsel.
time. Fortunately, we can feel on our But this is not all. We all should
faces the comforting warmth of the light be proud of why we do what we do. Be-
at the end of the tunnel. cause if we know the “why”, we will find
But there are always silver lin- the “how”.
ings to any crisis. Amongst these hid- We fulfill the very important duty
den blessings, the pandemic brough us to ferry our clients across often chopped ELTON SIMOES, MBA, MDR,
time to undergo a necessary reflection waters, to deliver them from the conse- IDP-C, C.MED, Q.ARB
of our values, actions, and commitments. quences and anxieties of unresolved dis- Elton Simoes is an accomplished Ar-
bitrator, Mediator, Negotiator, Con-
As it is said in Spanish, “yo soy putes to the safe harbour where these sultant, Board Director, and Business
yo y mi circunstancia”: “I am I, and my uncertainties are left behind, knowing Executive. He practices arbitration,
circumstances. My circumstances af- that they have been well considered, mediation, and Med-Arb in complex,
forded me the honour of being ADRIC addressed, and resolved by competent, confidential, time sensitive, commer-
cial disputes. He has lived, worked,
President and, in this capacity, the plea- neutral, ADR professionals. and studied in Canada, U.S., Latin
sure of representing our members and We make life better for our cli- America, and Europe. He possesses
serving our clients. ents. We make society better. a strong academic background in
There are many reasons why I There is still a lot to be done. Business, Law, Corporate Gover-
nance and Dispute Resolution.
am pleased to serve ADRIC’s members Potential to be unlocked. Doors to be
in our relentless quest to improve lives opened. It is, more than ever, time for
by using ADR. We all share this mission. planning to become work. Time for in-
Together, we have accomplished won- tentions to materialize into reality.
derful things. With renewed energy, ADRIC, that give new ADR practitioners ac-
ADRIC is Canada’s pre-emi- standing tall after emerging from the cess to professional opportunities.
nent professional Dispute Resolution pandemic, is focussed more than ever Our continued success is a function
organization. We have been providing on building value for its members and on how well we treat and integrate
leadership in arbitration, mediation, and clients by focusing on 4 strategic areas: the newcomers to our profession.
other ADR processes since 1974. We • Membership growth. Keep the ADRIC has a commitment that ex-
are over 2400 members strong and organization relevant and financially tends beyond its current members
growing, with 7 Affiliates across the healthy through membership growth. into the future generations of ADR
country. We promote ethical standards ADRIC is committed to continuing to practitioners.
and best practices. Our professional be the largest and most relevant • Diversity and Inclusion. Work
ADR designations emphasize peer-re- ADR organization in Canada. towards a more diverse and inclusive
viewed competency. • Professional Opportunities. Pur- profession and governance. It is our
ADRIC has established state- sue, develop, and support initiatives goal to walk the path that leads our
of-the-art, bilingual, and integrated Rules that produce professional opportuni- organization, profession, and
that apply to Arbitration, Mediation and ties for the ADR System members, professionals to mirror our society in
Med-Arb cases, offering arbitration case- either nationally, or in each province, all its beautiful complexities.
management services that cover filing in partnership with and led by ADRIC I leave you with a warm invitation to
to closing. It includes ADRIC acting as affiliates. We are a professional or- build this vision together. Get involved.
the appointing authority, the fundholder ganization. Advocating for ADR and Join our committees. Help our board
and the administrator to efficiently sup- supporting our members is in our and staff to shape our organization.
port the parties. DNA. ADRIC exists to serve you.
We produce two free presti- • Support new practitioners. Pur- I will be proud and honoured to
gious electronic publications focussing sue, develop, and support initiatives work shoulder to shoulder with you.
4 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNAL
ADRIC 2022: ANNUAL NATIONAL CONFERENCE
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- CANADIAN ARBITRATION AND MEDIATION JOURNAL
Listen In:
A virtual conversation with Journal editor Jennifer Webster and fellow
mediators Marc Bhalla and Dominique Panko exploring the impact of
technology on the mediation process and the people they serve as mediators.
Jennifer: Let’s start with introductions. Dominique: Hello! I am Dominique Marc: My name is Marc Bhalla. I am a
My name is Jennifer Webster, and I have Panko. I am a practising mediator in mediator and arbitrator who focuses on
a mediation and arbitration practice Saskatoon, Saskatchewan. I work with condominium, corporate, and commu-
based in Toronto with a focus on em- all kinds of conflict, but I focus on family nity dispute resolution. I live in Toronto
ployment and labour as well as commu- disputes. Mediating virtually gives both and enjoy practising online.
nity disputes. me and my clients flexibility.
Q: When did it first occur to you that and, like most of my clients, have missing. In addition, too much of my
the standard mediation model—a accepted technological change as a time was wasted travelling—to and
special in-person day for a face-to- regular part of life. As I wrote in a from a mediation or to and from
face conversation—might not suit piece published in the Spring 2020 breakout rooms during a mediation. I
all participants? And how receptive issue of this journal, “The world is have always been comfortable with
were you to alternative models? changing fast. New parenting apps, technology and felt I could deliver my
new social media, new challenges to services more efficiently online. Then I
Dominique: I’m a Millennial, so, parent through (how old do you have learned about the introduction of an
truthfully, a one-size-fits-all mediation to be to have snapchat?!)...” Flexibility online tribunal in British Columbia. I
model never made sense to me. If you is simply a necessary ingredient of immediately took online mediation
peel mediation back to its essence, it being a mediator. training and launched my online
is about the experience of the client. mediation services on January 1,
As a mediator, my goal is to help Marc: For me, it was in 2015. I had a 2016, with a cartoon of me mediating
clients with their unique issues without few frustrating mediations involving online from a beach! For the next four
being constrained by what has or scheduling hurdles, expensive travel, years, however, takers were few and
hasn’t worked for others in the past. and the “special day” not working far between. I sensed that online
I’ve also grown up with technology because important information was options interested disputants more
6 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNAL
than their legal representatives. Then when it is flexible, and the technolo- comfort. I also have adopted a hybrid
March 2020 arrived, and mediating gies of today allow us to realize this far model for some meetings, meaning
online became the default way of more richly than ever before. I strive to some parts are online and some in
proceeding. offer process flexibility so people person and at different times. I have
experiencing conflict use the communi- many files with stakeholders in differ-
Jennifer: I developed a sense that the cation channel they prefer. I primarily ent locations. If I have one participant
mediation model was not working for use email, Zoom, Teams and Google who isn’t comfortable with technology,
most participants between 2000 and Meet. I also have an online availability and one who can only participate
2016 when I was working as a media- calendar. For planning or communica- through video conferencing, I can put
tor for Federal Mediation and Concilia- tion outside of synchronous meetings, the less savvy person in my physical
tion Service. However, I did not have I have observed that many people are office with me while I manage the
the flexibility or institutional authority to more comfortable with text-based technology elements myself.
experiment with other approaches. communications. That said, there is no
When I started my own practice in one right approach; different people Q: That’s quite an array of
2016, I incorporated technology into have different preferences. technological choices. Who gets
my practice from the outset, principally to decide?
because I had little administrative Jennifer: I am using videoconference on
support. The pandemic certainly many platforms, teleconference, and Dominique: Generally this is decided
increased my use of technology from text-based communications for during consultations with the individu-
March 2020 onward. mediation. als, though I have not seen the format
of the mediation be hotly debated.
Q: Which specific technologies Dominique: It’s all about recognizing the Folks tend to see the need for flexibil-
do you use now? dynamic nature of people’s lives and ity, and I do not let the clients negoti-
having the patience and ingenuity to ate format at this time. If I have a
Marc: Dispute resolution is at its best accommodate differing levels of participant who is only comfortable
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7 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNAL
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8 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNAL
attending virtually, I will not compel am not interested in spending loads of Finally, by using video
them to come in person even if another time negotiating platform. Disagree- conferencing, my clients can save
participant is demanding attendance. I ments over that are like disagreements driving time. That means that my
take the lead on these conversations, over the location of an in-person family clients who are teachers or work
but find that the more I work with a mediation— if parties truly want to give hours similar to mine and aren’t
particular organization or group the mediation a try, they will be able to sort available to come into my office during
more quickly they get into a groove those logistical differences out. the day can take their hour lunch break
when it comes to format, and there or even their 30-minute coffee break to
very seldomly is a debate on this topic. Q: How has technology helped do their intake meetings with me. We
in convening and scheduling can also meet over nap time or after
Jennifer: I generally take a leadership mediations? the kids are in bed for the parents with
role in suggesting and recommending small children who struggle to get
different approaches based on the Dominique: Scheduling now is a childcare.
type of dispute and the participants’ breeze. Getting hold of clients over the
comfort levels. I also work for three phone or waiting for a response over Marc: I had often said that scheduling
different tribunals that have their own email while my calendar fills up used mediation can be the hardest part of
systems, and I adapt each tribunal’s to delay a lot of my files. Since people the process. People are busy these
system to the people and the issues. are getting more online, I’ve introduced days. Expecting them to give half a
a booking system to my website so day or a full day to a mediation is a big
Marc: Like Jennifer, I adapt to what new and current clients can schedule a ask. Mediation with technology makes
works for the people in each particular time right into my calendar, moving the it easier to break up the process—not
situation. My general approach is to burden of scheduling from me to my suitable for every dispute, but the
see what technologies parties are clients to sort out, saving me time and option is there. It is more feasible to,
already comfortable using and to work them money. This works especially for example, break up a 3-hour
with them. Before the pandemic, I well for my family files because the mediation into three one hour meet-
found those who opted for online parties generally have a good idea of ings. Breaks between process events
choices were enthusiastic about each other’s schedules or see each or asynchronous participation alto-
technology and not generally hesitant other regularly. They can book, cancel, gether offer advantages such as the
or combative about which to use. I had and move appointments as convenient opportunity for parties to gather
not thought about it that way, but for them, plus it gives them another information, seek advice, think through
suppose I did take a leadership role in opportunity to practise the cooperating their options and what they would like
tech selection for them then. Since the skills we work on in co-parent mediations. to say. This can enhance what can be
pandemic, I have definitely noticed that Another tool I love is doodle achieved through mediation.
I am looked to for leadership in this poll. I use this one to set up collabora- I handle my own availability
respect. I have heard of some media- tive meetings or anything with more calendar. There are several modules
tors running into obstacles with certain than three participants. It’s similar to that make it easy to do for anyone who
organizations refusing to use certain giving three dates to a group, but you knows a little html, WordPress or
platforms out of privacy/data concerns, can give a whole range of dates or Joomla! to handle on their own. That,
but have not experienced that myself. I even plug your calendar right in. along with a good old fashioned Outlook
calendar invite with the meeting link
included works well for me.
I aim to keep it simple and
ADR
decided years ago to do away with any
PERSPECTIVES • Cross-Canada Editorial
Board: some of the thought of conducting more than one
Perspectives on alternative foremost mediators and mediation a day in my private practice,
dispute resolution for ADR arbitrators in the country
to ensure I am dedicated to my clients
parties and their lawyers. • Short, practical articles and, definitely, for the preservation of
• Relevant to ADR end users my own mental health. This also
• Four issues annually prevents scheduling from getting
SUBSCRIBE NOW READ PAST ISSUES complicated.
No fee subscription
9 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNAL
Jennifer: Before starting to incorpo- mediation participant takes part tions by teleconference and
rate the different technologies into my through their own device and from a videoconference, there are always
practice, I had almost entirely con- location that they are already familiar distractions. The online protocols and
ducted mediation through synchro- with, the playing field can feel leveled. ground rules are important, and, at the
nous, in-person meetings, and sched- This does raise some new client same time, the standard of conduct or
uling for those meetings was often management hurdles for legal repre- internet connectivity is not perfection.
very challenging, particularly when sentatives. For example, if a lawyer
participants were located across the and their client are not participating in Dominique: I completely agree with
country. Now, when we are mediating online mediation from the same Marc: that more people can participate
with different technologies, we are no location, it can be harder for the lawyer in an online format and the more the
longer focused on finding a day when all to prevent their client from talking. That merrier! As Jennifer said, it increases
the participants are available. In addition certainly puts people back into the the ability of clients to feel heard. I do
to doodle, I have been using an online mediation process! however find that while online meet-
calendar for scheduling through My mediation practice often ings can bring people back into
MediatorDates for my private practice. includes disputes involving condo- mediation, it can sometimes create a
Technology makes scheduling minium and corporate entities that are more time consuming process as
so much easier: I can schedule short controlled by boards of directors. I people have distractions in their own
individual sessions at times convenient have observed that more directors homes, internet connection can be
for each participant, and there is more participate in online mediation than in- unreliable, and running people through
flexibility in each person’s calendar person mediation, as we overcome the my online etiquette protocols eats into
when I am only looking for an hour or hassle of travel and ease scheduling. It our scheduled meeting time.
two of their time and when they are not can make it more challenging for me Sometimes it’s a question of
required to travel for an in-person as the mediator in terms of controlling quantity or quality: I want the right
meeting. I recently conducted a team the process and coordinating breakout people in the room, not necessarily
mediation where I was able to sched- rooms, but I enjoy such challenges. I everyone who is available. The more
ule meetings with each individual over once had an online mediation involving folks we have in a meeting, the more
a week, and that arrangement gave more than 20 people going in and out troubleshooting and potentially dis-
each person more time to reflect on of 5 different breakout rooms, so I was tracting background things we have
the conflict and consider how to constantly re-arranging who would be going on. This can be really hard for
approach the discussion when we grouped together! So long as the my family clients who bring their
arrived at a joint session. capacity and purpose of each person’s lawyers in for each meeting as the
participation is clear and appropriate, I price point rockets when our meetings
Q: In your experience, has technol- usually find the more the merrier, stretch longer than anticipated. I also
ogy enhanced participation in especially in dynamics where there will have noticed both lawyers and clients
mediation? If so, how? be ongoing relations between all seem to be less prepared for meetings
involved. that are not in person. This is not
Marc: Definitely. Most of my in-person always the case, but the temptation to
mediations took place at a law office, Jennifer: Because the technology check emails or do other things while
more for the convenience of the allows for expanded participation, in meetings can really negatively affect
lawyers than for the comfort of dispu- there are more opportunities for how people show up.
tants, and while the formality of a law participants to be heard, not just by the
office can, at times, be helpful, it is mediator but by the other people Q: Would you say that managing
often intimidating. Online mediation affected by the conflict. I find that my technology is now a mandatory
allows people to take steps to address participants and I are learning together competency for mediators?
conflict more comfortably. They can how to better manage the technology
participate from the comfort of their and the different challenges. Dominique: I do not think every
own home or office. They can keep a I think, as mediators, we need practitioner is capable of managing a
pet nearby. I have found that such to first acknowledge that the context is virtual meeting, but this is an area we
convenience and familiarity results in different and meet the participants should all strive to have a high level of
increased participation from the people where they are. So, for instance, competence. There is online dispute
involved in the dispute. When each when people participate in media- resolution training available to help
10 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNALADRIC BENEFITS OF MEMBERSHIP
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Learn more about all ADRIC member benefits: http://adric.ca/membership/member-benefits/practitioners develop this skill. If need their cameras on, I can’t have interrup- for participants to give verbal assent to
be, technology coordinators can be tions because they make it so I can’t the agreement and include that our
contracted out to manage a virtual room, hear anyone, and I have all my meetings may be any combination of
though this service can be expensive. participants verbally confirm they are in-person or virtual. This is a small
not recording the meeting and there is change, but I will likely keep it going
Jennifer: I agree that we should all no one else in their space who could forward as it gives me more flexibility
improve our comfort and competence overhear us. in meeting format.
in managing virtual meetings. At the You always need a backup
same time, these are functions that plan for interruptions or connection Marc: I have never been one to
can be assigned to others if the issues. Generally, connection issues require too many ground rules. That
mediator needs to focus exclusively on can be dealt with effectively by switch- said, confirming the confidential nature
the mediation. In my private practice, I ing audio to a phone call. Interruptions of my process is a key one that I
manage all aspects of the virtual or distractions often result in the review at the outset of every media-
meetings, but in my tribunal hearings, meeting being rescheduled or paused tion, whether online or in-person.
these functions are managed by adminis- until the issue is resolved, but this Otherwise, I tend to take cues from my
trative or case management staff. should be discussed at the beginning clients to see what is most comfortable
of the meeting. for them. I find that participants
Marc: Managing technology is defi- Because the process is more providing input on ground rules can be
nitely a mandatory competence these rigid when I am mediating online, I a good way to make them feel a part of
days. If a mediator does not have a don’t get to see how my clients fight, the process.
base level of competency with technol- which is a really crucial aspect of I have always had a clause in
ogy, I do not believe that they can family mediation. To address this, I’ve my agreement that speaks to using
adequately facilitate online mediation. been much more conscientious about technology in mediation. Essentially, it
While support is available and may be doing robust screening for high conflict establishes that the preservation of
tolerated as a work-around during a and family violence. I need to spend confidentiality in mediation is a shared
global pandemic, I do not see it as more time actively listening and responsibility because I do not believe
feasible long-term. Imagine if, during clarifying my understanding when using that a mediator alone can ensure a
an in-person mediation, the mediator technology to mediate, especially when mediation takes place on a confidential
needed someone else to unlock the using text-based communication. basis, in-person or online. My agree-
door to each room as parties moved In my agreement to mediate, I ment has parties acknowledge the
from joint session to breakout rooms have amended some wording to allow limits and releases me from liability in
and as the mediator moved between
breakout rooms. The process would be
neither seamless nor efficient and, in
my view, would reflect poorly on the
mediator’s process leadership.
Q: Have you instituted or modified
your ground rules or terms of Dentons. A leader in appropriate
reference as a result of using
technology in mediation?
dispute resolution (ADR)
Disputes are a part of doing business; at Dentons, resolving them is
Dominique: I have started implement-
our business. ADR is one of Dentons’ core practices, and as a globally
ing ground rules. I never impose rules recognized leader, we are here to help you.
on clients in person, if they want to put
To learn more about our practice, please contact
together some rules of engagement for
our team in Canada.
the meeting, then wonderful, but my
standard line has always been that it is Dentons, the law firm of the future is here.
for them to define respectful communi-
cation. I simply cannot do this with dentons.com
online meetings. I tell clients I need
12 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNALthe event of mishaps. levels have increased. involved as needed. I have worked
with parties where we share the
Jennifer: Like Marc, I do not take a lot Marc: Online or in-person, pandemic screen and work on a draft together,
of steps about ground rules beyond or pre-pandemic, I have always offered but it is more common for the parties
establishing a shared understanding of and never insisted on this. There was to reach an agreement in principle and
confidentiality and reviewing the a bit of a golden period of uptake then finalize a document through email
expectations around the technology. I between March and June 2020, when versions back and forth.
review ground rules at the outset that legal representatives had less experi-
are fairly similar to the process rules ence participating in online mediation. Marc: This is something I encourage
that Dominique mentioned. I expect Since then, I have found that this my clients to consider ahead of the
that participants keep their cameras on generally is not being embraced as mediation. In my practice, the most
unless there is a good reason for not often as it should, probably because of common approach is for one of the
doing so. There is no recording of the busy schedules. But orientation and lawyers involved to prepare an initial
session. I ask people to speak slowly preparation go beyond technology, draft settlement agreement in Word
and clearly because there can often be and the value of preparation should be and email it to the other. From there,
an audio lag. I also ask participants not better appreciated. they typically share a screen and talk
to use the chat function that is avail- through changes. Of course, the
able in the videoconference platform, Dominique: I spend more time relationship between opposing counsel
and sometimes I will disable the preparing my clients to mediate. I have makes all the difference as far as this
function so that it is not available to always insisted on doing consultations goes. My approach is to have a plan in
them. Personally, I really miss the with my clients. If someone is partici- place around the practical side of
visual cues that are available to me pating in a mediation I am running, I capturing settlement in advance. I also
during in-person mediations. In will have had at least one conversation think talking about it in advance brings
videoconferencing we are still only beforehand either with them or their some hope of resolution to mediation
seeing part of the person, and I am lawyer, preferably both. We talk a lot preparation.
finding that I am asking more ques- about what they need to have a
tions about my understanding to check comfortable, distraction-free environ- Q: Please offer a final insight or
that I haven’t missed something ment, and talk about if they need an learning from your experience
because of a technology barrier. orientation for any technology we will with technology in mediation.
I rarely use written terms of be using. I front-end load a lot of my
reference. When I do, however, I have meetings. Marc: To me, a silver lining of the
changed the terms for the virtual space pandemic is the reduced formality that
to address the expectation that there Q: What about minutes of is expected in this context. Historically,
will be no recording of the meeting and settlement? Has technology online dispute resolution has been
that participants will have privacy when changed anything there? categorized as cold or impersonal
they participate or identify all persons relative to in-person processes, but
who are in the meeting space with Dominique: I have really embraced that’s not consistent with my experi-
them. collaborative writing tools like teams, ence. By making it acceptable for
google docs, and OneDrive. Those someone to forget to un-mute or have
Q: What are your practices for tools help me work with other profes- their cat crash the meeting, we
preparation and orientation? sionals and my own in-house team, as humanize the process and the
well as give my clients the ability to parties taking part in it. While a
Jennifer: In early 2020, I was regularly edit a “one-draft” style agreement and certain level of formality is still
offering orientation sessions to partici- provide comments or questions. important and required, the lower-
pants to ensure that they could ing of the bar in this respect is
connect and understand the functions Jennifer: My practice with respect to something that I consider to be a
of the technology. I find that partici- the written settlement really has not great thing! While I will stop short of
pants rarely need this kind of support changed in moving from in-person to welcoming distractions in my
now because they have been using virtual mediation. I prefer that the process, I will say that they are
videoconference technology in many parties write the settlement documents expected and can be accommo-
aspects of their life and their comfort as much as possible, and I only get dated. Of course, this has to be within
13 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNALreason. Mediation participants have to Dominique: Since expanding my Now, I’ve been manufacturing similar
commit to being present and focused practice into the virtual space, I have opportunities for my clients to get a
on the task at hand. They also need to become more aware of fatigue and the breath of fresh air, a glass of water, or
eat and make sure their kids are need for breaks. When we’re online, have a caucus with me or their lawyers. I
picked up from school. there are often natural breaks. The find this has helped all my clients maintain
dog needs to be let out, someone their creative thinking and break im-
Jennifer: I have become more aware needs to get the mail, we’re pausing passes, so I’m thankful for that learning
of different communication and for lunch and picking up again after. coming out of practising virtually.
thinking styles through the use of video
and teleconference mediation. I think Jennifer Webster, B.A., LL.B.
that the technologies have forced me Jennifer Webster has her own practice as a mediator, arbitrator
to consciously consider what partici- and facilitator with a primary focus on labour, employment and
pants need to be able to fully human rights law. As part of her practice, she is appointed to the
engage with the process and to following tribunals: the Canada Industrial Relations Board, the
explicitly ask what steps they need Transportation Appeal Tribunal of Canada and the Ontario Con-
to take to reflect on the issues dominium Authority Tribunal. She was also a member of the Hu-
being discussed. I am slowing down man Rights Tribunal of Ontario from 2017 to 2019.
a bit in my process to create the
space for the participants who need Dominique Panko, C.Med
reading or thinking time or a break Dominique Panko is a Chartered Mediator and Parent Coordina-
from the screen. I have also learned to tor operating out of Saskatoon, Saskatchewan. She is currently
better manage my expectations and on the board of ADRSK, volunteers with the Under-40 Forum, and
those of the parties about the media- is a leader with the Girl Guides of Canada. Dominique practices
tion experience. This means that I can family, personal injury, and general mediation.
bring the flexibility of a range of
Marc Bhalla, LL.M. (DR), C.Med, C.Arb
approaches to mediation and work
Marc Bhalla, LL.M. (DR), C.Med, C.Arb (he/him) [biracial] is a me-
with parties through in-person ses-
diator, arbitrator and educator who works online from Toronto. He
sions, virtual sessions, or through text-
earned a Master of Laws in Dispute Resolution at Osgoode Hall
based communications —and all of it
Law School and holds ADRIC's Chartered Mediator and Arbitrator
is still mediation.
designations. Please see www.456dr.ca for more about Marc.
ADR Outsourcing Services
Our case administration services
include everything from the
assignment of Arbitrators
and Mediators, to final billing.
• Neutral Selection Services
• Rosters
• Systems Development
• Arbitration Administration
• Training Programs
• Referrals
• In-House Designations
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14 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNALIncreasing Police Trust and
Effectiveness through Conflict
Management Training
Conflict management practitioners can
contribute to organizational and social change.
At the present time, a conversation that would
benefit from their objectivity, empathy, and
skills is the difficult one about police reform. RICHARD MOORE LL.B, C.MED,
CFM, C.MED-ARB, C.ARB
For many years, I have worked in the Richard is an experienced conflict
Athabasca Chipewyan First Nation Chief
police sector, helping to resolve both management practitioner and trainer
Allan Adam by RCMP officers in Fort and a former board member of the
citizen complaints against police and McMurray, Alberta, on March 10, 2020. ADR Institute of Ontario. He is a co-
conflict within policing organizations. I Like other mainstream Canadian insti- founder of the Canadian Collaborative
have mediated scores of citizen com- for Engagement & Conflict Manage-
tutions, police organizations have now
plaints and analyzed how officers’ ment, and author of a recent book
acknowledged systemic racism within entitled A REALISTC© Framework for
behaviours can contribute to such their walls. Calls for defunding police are Enhancing Communication, Relation-
complaints. I have developed an ap- common, and Canadian police services ship-building & De-escalation Skills.
preciation of what citizens expect of boards are regularly fielding such re-
their police. I have also reviewed quests from concerned citizens. Mistrust
research to understand where tra- in the ability of our police to serve and
ditional police training and culture protect us, long an issue with minority loss of public trust comes loss of legiti-
can be changed to give officers en- groups, is now a common conversation macy as well as effectiveness. And
hanced knowledge and skills to bet- around Canadian dinner tables. Having people mostly judge police effectiveness
ter equip them to meet citizen ex- said this, few people would argue about by the way police treat them in one-on-
pectations. As a result of my the fundamental importance of trusted, one encounters.
experience, I am motivated to con- impartial policing in a free and demo- Research studies3 have shown
tribute in a positive way to the con- cratic society. that public trust in police and effective
versation about police reform, and I Police scholars and leaders law enforcement go hand in hand. For
have given much thought to the kind of understand that police must have the example:
training that would be effective and ben- trust and confidence of their communi- • When citizens see the police as le-
eficial. I appreciate and applaud the fact ties to be most effective in their law en- gitimate, they trust police to do what
that additional skills and attitudes have forcement duties. Without trust and con- is right for the community and accept
been introduced into police training in fidence, without what is called “police the exercise of police power.
the past, but my dispute resolution legitimacy,” neither law enforcement • Police have legitimacy when people
work strongly suggests a continuing nor peacekeeping duties can be op- see them positively, accept and re-
need to update and reinforce such timally fulfilled. Indeed, in the United spect their authority, and feel they
important training. States, the 2015 President’s Task treat people fairly and respectfully.
There have long been cries for Force on 20th Century Policing 1 said • When police do not have legitimacy,
police reform by various communities that building “trust and legitimacy” people resist their requests. They are
and groups. These cries have grown with the public was the top priority in more likely to file complaints, are less
exponentially and recently skyrocketed American policing. Scholars know that willing to cooperate in preventing,
due to some disturbing and highly pub- police organizations seldom experience reporting or investigating crime, are
licized events like the killing of George a public crisis because of crime rates. less satisfied with their police en-
Floyd in Minneapolis, Minnesota, on They mainly experience crises because counters, and are less willing to obey
May 25, 2020, and the beating of the public no longer trusts them.2 With the law.
15 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNAL• Weak legitimacy on the part of po- support. enhancing police legitimacy and effi-
lice runs the risk of more violence— • Officers trained in procedural justice ciency. And trust and confidence depend
between citizens and the police, by receive better ratings from victims of on how people believe they have been
citizens against police, and by po- crime than officers who were not so treated in their individual interactions
lice against citizens. trained. with police.
• The most important factor affect- But not only citizens are hurting; police Conflict management practitio-
ing an individual’s willingness to are hurting too. Working as a police of- ners also concern themselves with the
cooperate with police is whether ficer or within policing organizations is dynamics of power, a relevant consid-
police are perceived as having tough, stressful, and demanding. It is eration in police-citizen interactions.
been fair in how they have used not unusual to find that in any given Power—in this case the capacity to di-
their authority—in other words “pro- detachment or police service be- rect or influence others—can impact how
cedural justice.” tween 25%–35% of officers are away people feel, perceive threats and re-
• People judge whether they have from their normal duties due to wards, attend to information, and behave
been given “procedural justice” (of- stress-related health matters. Often in social situations.4
ten referred to as “natural justice” in it seems to be a no-win situation. Citi- Police officers typically have (or
Canada and the UK) by four criteria: zens are crying out for change, and are perceived to have) “elevated power”
whether the officer treated them with academics are advocating for new over the citizens with whom they inter-
fairness, respect, trustworthiness, approaches, but there is a scarcity of act, whereas citizens typically have (or
and gave them a voice in the deci- effective, positive, and supportive edu- perceive themselves as having) “re-
sion-making process. cation and training material to help ev- duced power.” For example, police can
• Being treated fairly and respectfully eryone get to a better place. This is stop, question, detain, or arrest citizens
is especially important for residents where conflict management comes in— who do not enjoy reciprocal abilities.
of poor inner-city communities who a multidisciplinary field that serves con- When police officers understand this
are more likely to see police as too stituencies by integrating knowledge power differential, they can better man-
aggressive in their tactics when in- from different disciplines and adapting it age situations and thereby create safer
teracting with them but not respon- to their contexts. Police reform is chal- and more stable outcomes for both citi-
sive enough when it comes to help- lenging and multi-pronged, and conflict zens and themselves. And “understand-
ing them with crime in their management practitioners must be part ing” means recognizing, accepting, and
neighborhoods. of the process. checking the tendencies that social sci-
• Procedural justice is important to Much of what conflict manage- ence research has identified in individu-
every individual, no matter their race, ment practitioners know and do has di- als with elevated power. Such individu-
ethnicity, gender, income, age, edu- rect applicability to enhancing police re- als may be more likely to:
cation, ideology, and/or politics. form and efficiency. As noted above, • be optimistic when they assess risk
• If an individual thinks they were maintaining, or establishing trust and (e.g., they have a high belief that they
treated unfairly, they will conclude confidence between communities and will win and a lower belief that they
that they were racially profiled dur- police is the most important factor in will lose) as well as when they make
ing an interaction with police.
• Negative, unsupportive reactions
from police to victims of sexual as-
sault can affect the victims’ psy- ADR CONNECT
chological recovery and lower the
chance of future disclosure or re- Find a Mediator, Arbitrator,
porting to authorities. People will Trainer or other ADR Specialist
give officers bad performance rat- with our unique Search Engine
ings when officers take control of
their decisions, blame them for
their victimization, distract them
from what happened, and show
egocentric behaviour. People posi-
tively rate officers who provide instru-
Learn More
mental, emotional, and informational
16 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNALdecisions (e.g., they can be overcon- they feel incompetent, and enhanced in this area. Much effort and
fident) • judge the moral wrongdoing of oth- resources are put into Use of Force train-
• see citizens as a means to their own ers more strictly than their own. ing, and such training is certainly a re-
ends And at the same time, citizens with quirement for effective law enforcement,
• dehumanize citizens, engage in dis- reduced power are more likely to: but equal effort should be put into en-
tant and cold decision-making, and • feel negative moods and emotions hanced communication skills training.
sacrifice citizens’ welfare • pay more attention to threats and the Research shows that police cul-
• prioritize their self-interest above that prospect of punishments ture over-estimates the chances of an
of others • pay more attention to the intentions, officer being injured or killed on duty.
• rely more heavily on mental short- attitudes, and actions of others, and Much attention is paid to the “Officer
cuts or rules of thumb (heuristics) to • be more inhibited around others. Safety First” mantra which has made
help them solve problems and make Unless the power differential between Use of Force models important in of-
judgments quickly and efficiently, police officers and citizens is sensitively ficer training for decades. These
with the result that they risk making handled, officers’ behaviours can in- models emphasize the use of com-
mistakes based on narrow perspec- crease the chance of injury to them- mands to establish police presence
tives and stereotyping selves and citizens, and lead to reduced and authority based on the belief that
• be more focused on their own view citizen satisfaction and cooperation in an officer should be ahead of the situ-
rather than adjusting to the per- the moment and in the future. ation and dictate its course. While the
spectives of others. This makes In addition to understanding the Use of Force models used in Canada
them more vulnerabl-e to under- dynamics of trust and power, police in differ from those used in the United
estimating how long tasks will multicultural Canada need to understand States, all such models have the same
take because their planning ig- how culture and lived experiences im- intention: to control the situation by ac-
nores relevant information pacts people’s expectations for protec- tions of the officer that are designed to
• have unconscious bias (e.g., be tion and safety, how different ap- change the behaviour of citizens and
more positive towards white faces proaches to conflict can be handled, and make them conform with to officer’s de-
and negative towards black faces) how to mitigate against unconscious bi- mands. “Control” means using or threat-
in implicit association tests ases— all topics that can be taught. ening to use force.
• hold onto initial judgments and dis- Conflict management practitio- A major problem with over reli-
count the advice of others ners also appreciate that good commu- ance on the Use of Force model for train-
• be more prone to risky behaviour nication skills help prevent and manage ing both new and seasoned officers is
• be more prone to aggression when conflict. Police training could certainly be its focus on control. Better results will
come from training officers to use a more
engaging style of communication and
then rewarding them for doing so.
Training for engagement puts less
emphasis on control and more em-
phasis on discussion, negotiation,
When you require the services of a dedicated understanding, and empathy. It less-
Canadian-Based team of arbitration counsel, you need to be ens emphasis on the “harder” com-
Expertise with confident in your decision.
munication methods applied in the
BLG’s Arbitration Group has extensive experience
International appearing for clients involved in a wide array
Use of Force models, such as clear
and deliberate verbal commands, and
Reach of industries, from construction to mining, from
energy to aviation and beyond, and under all increases emphasis on the “softer,”
sets of major institutional rules.
perhaps better described as “human,”
BLG’s Arbitration Group members communication methods appropriate
are recognized in:
to the situation such as tone of voice,
| Best Lawyers | Benchmark Canada
body language, two-way conversa-
| Chambers Canada & Chambers Global
Canada’s Law Firm | Global Arbitration Review 100 tional engagement, searching for bet-
Borden Ladner Gervais LLP | Legal 500 | Lexpert | WWL: Arbitration ter understanding, slowing down the
is an Ontario Limited
Liability Partnership. blg.com/InternationalArbitration conversations, and showing empathy.
These communication methods will gen-
17 VOL. 31, NO. 1 - CANADIAN ARBITRATION AND MEDIATION JOURNALerally better de-escalate volatile situa- Meaningful and transforma- us all down a better path. We will
tions and influence citizens to cooper- tional change in the police and security move from a place of escalated emo-
ate. sector will take time. It requires systemic tions, low trust, and high resistance
During any given tour of duty, change at the organizational level in- to a place of increased understand-
situational demands on officers can cluding such things as new ap- ing, trust, respect, and cooperation.
shift in a heartbeat. One minute they proaches to recruitment and perfor- It will enhance the individual health
are on a nightmarish notification of mance evaluation, continuous of officers, reduce the risk of harm,
death call, the next they are asked to training, and more robust healthy create better community relationships,
deal with a citizen complaining about workplace support. From an indi- enhance people’s feeling of safety and
the neighbour’s grass clippings on vidual officer’s perspective, training security, and increase police effective-
their driveway. One minute they are is needed on understanding the ef- ness.
returning a lost child, the next they fects of a “power over” attitude and This is the work for and duty
are attending a potential suicide situ- the “command and control” model of of conflict management practitioners.
ation. It is no wonder misunderstand- communication and an appreciation We need to bring our objectiveness,
ings arise and imperfect responses of a more socially realistic, our understanding, our empathy, and
occur. Officers need more compre- empathetic, inclusive conversational our skills to this polarized and important
hensive training on how to quickly re- style of communication. This will take conversation.
compose themselves after one call so
they can be at the top of their game and
1 https://cops.usdoj.gov/RIC/Publications/cops-p341-pub.pdf
“in the moment” at the next call. Teach- 2 See, for instance, “Measuring procedural justice and legitimacy at the local level: The police-community
interaction survey”—Journal of Experimental Criminology, January 2015, Rosenbaum et al
ing methods of resilience should be high- 3 “De-Escalation in Police-Citizen Encounters: A Mixed Methods Study of a Misunderstood Police Strat-
lighted. This is necessary in today’s fast- egy” by Natalie Todak. A Dissertation in Partial Fulfillment of the Requirements of a Doctor of Philoso-
phy 2017 Arizona State University.
paced and demanding environment but 4 See Kelner, D., Gruenfeld, D.H. & Anderson, C. (2003) Power, approach, and inhibition. Psychological
Review, 1110(2), 265-284, and Cho, M., & Keltner, D. (2019) Power, approach, and inhibition: empirical
runs counter to traditional “suck it up” advances of a theory. Current Opinion in Psychology 2020, 33:196-200
police culture.
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