ADR UpdateSummer 2011 Newsletter ofthe ADR Institute of Ontario, Inc.ADR Institute of Ontario, Inc. #405, 234 Eglinton Avenue East Toronto, Ontario M4P 1K5www.adrontario.ca Tel. 416-487-4447 Fax: 416-487-4429 admin@adrontario.ca

Inside this issue:

NeNeNeNeNewslewslewslewslewslettttt ter Commiter Commiter Commiter Commiter Committttt tee Members:tee Members:tee Members:tee Members:tee Members:Anne GrantAnne GrantAnne GrantAnne GrantAnne Grantanne.grant@mediatedsolutions.ca

Colm BranniganColm BranniganColm BranniganColm BranniganColm Brannigancolm@mediate.ca

The ADR Institute of Ontario is a regional af-filiate of the ADR Institute of Canada. It is anon-profit, private organization established toprovide leadership in the promotion of alter-native dispute resolution for ADR profession-als and users of ADR services. The Instituterepresents over 800 professionals in Ontario.

ADR INSADR INSADR INSADR INSADR INSTITUTE OF ONTTITUTE OF ONTTITUTE OF ONTTITUTE OF ONTTITUTE OF ONTARIOARIOARIOARIOARIO234 Eglinton Avenue East,Suite 405Toronto, Ontario M4P 1K5Phone: 416-487-4447Fax: 416-487-4429Email: admin@adrontario.cawwwwwwwwwww.aw.aw.aw.aw.adrdrdrdrdrontario.caontario.caontario.caontario.caontario.ca

For membership or newslet ter inquiries,please call Mena Sestito at 416-487-4447or email admin@adrontario.ca

1 President’s Message - Ontario

2 Update from the President(s)

4 Arbitrator Lacks Jurisdiction to MakeInjunction Orders Affecting Non-Parties.

7 Mediation Dealing With DebtCollection Ontario

9 London Lawyers Consider Mediation

12 Mediation as a Substitute for Justice?

13 Part 3 “Do We Have A Duty To Negoti-ate In Good Faith?”

14 The Miscarriage of Restorative Justice:Canada’s Inability to CarryRehabilitation to Term

17 ADR Institute of Ontario, AnnualGeneral Meeting

President’s Message - Ontario

We are delighted to announce thatfuture issues of ADR Update will beenriched by contributions from ourcolleagues in Saskatchewan, Manitobaand the Atlantic region and messagesfrom their Presidents.

For now, wehave includedbrief updatesfrom thePresidents ofthese affiliates–with moreextensivecontributionsplanned forfuture issues.

All announcements at this year’sAnnual General Meeting werepositive, including the fact thatwe are now over 800 strongacross Ontario with an ever-growing number of membersholding designations.

And those who attended theconference following the AGMleft on a real high.

The panel on Improving Media-tion Practice throughIntrospection and Dialogue,skillfully led by Peter Bruer of St.Stephen’s House, covered suchmeaty issues as: What definesmediation? Mediator Power andthe Impact of the Mediator on theMediation; When, if Ever a Media-tor Should be Evaluative; How toMaintain Neutrality While Giving

Parties What They Need byWay of Reality Check; Impor-tance of Fairness; BringingParties Back from the Brinkand more. Panelists Dr.Barbara Landau, HeatherSwartz and Roger Beaudrydropped gems of wisdomwrought from years of experi-ence and provided a varietyof perspectives that certainlycontributed to my personaland professional growth.

McGowan Award winner BillHorton then lead an outstand-ing panel that included BrianCasey, Tom Bastedo and theHonourable James Chadwickwho filled their too-short timeslot with nuggets on practicalmechanics, process andprocedure of arbitrationbefore commenting on thekey ingredients for makingarbitration the better option incomparison to litigation.

Elaine Newman, currentlypreparing a fascinatingcourse on Ethics for ADROntario, rounded out the daywith a thought provoking anddynamic talk on that subject.

Please Note: All ads are subject to approval.janet@adrontario.ca / 416-487-4447 ext 105

Now acceptingClassified Ads

— ask Janet forad rates today!

ADR UPDATE / SUMMER 2011

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Update from the President of the ADR Institute of Saskatchewan, Anne Wallace

We thank all those who partici-pated in this event for their timeand effort and the obviouspreparation involved. We alsothank the Metropolitan Hotelfor working with us to keep theprice at an acceptable level forour members.

We are also happy to announcethe appointment of Anne Grantas VP/ President Elect for 2012;Kathryn Munn as Secretary andour thanks to Enzo Carlucci whocontinues as our Treasurer. Wewelcome Cindy Dymond, ResaEisen and Kathleen Kelly as newBoard members. Many thanks toour retiring Board members: BruceAlly, Richard Beifuss and MelMatthias for their contributions.

As we enjoy the summer weather,activity continues at the Institute.The Professional DevelopmentCommittee is hard at work underKathryn Munn’s leadership devis-ing the Fall Program, the Meetand Greet and a Winter Week-end Retreat. Anne Grant is busyworking on a membership surveythat will allow us to anticipatemember need, and Mena is busyscheduling interviews for mem-bers who apply for the C.Medprior to August 31 so they canbe evaluated against theexisting rather than the newcriteria that goes into effect as ofSeptember 1, 2011.

Amidst this backdrop, JanetMcKay and Mary Anne Harnickare working with the B.C. andNational Conference Committeesto develop a program like nothingwe have ever seen before. I havealready booked my ticket and Iwould urge all our members to dothe same. Networking opportuni-ties alone make this anot-to-be-missed event.

I look forward to seeing a strongcontingent of Ontario members atthe National Conference in Van-couver, October 27-28.

— Joyce Young President

Saskatchewan is…..

• providing a two day Facilitating with Ease train-ing course in Saskatoon October 13-14, 2011.

• working on a new committee structure to betterundertake activities.

• working towards a joint conference for May 2012with Conflict Resolution Saskatchewan and theCollaborative Lawyers of Saskatchewan.

• in the process of transferring administrative activities to our new staffperson, Brenda Lesperance, who is located in the national ADRICoffice. More details soon…

• working on the NEW AMIMWebsite which should be finishedby end of July.

• planning course training andadministration of a mitigationprogram to assist ManitobaPublic Insurance Corporationwith the development of a dis-pute resolution initiative onunsettled automobile injury claims,which could be expanded to

include additional claim settlements.

•hoping to develop a similar relationship with the WCB, yet to beexplored.

Update from Alex Warga, President of the Arbitrators and Mediators Institute of Manitoba

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PPPPPrrrrresidentesidentesidentesidentesidentJoyce Young, MS, C.Med.Joyce Young & Associates Ltd.

PPPPPasasasasast Pt Pt Pt Pt Prrrrresident:esident:esident:esident:esident:Heather Swar tz, B.A/B.S.W., M.S.W., C.Med.,Acc.FM, Cer t. F. Med.Agree Dispute Resolution

V.PV.PV.PV.PV.P. P. P. P. P. Prrrrresident Elect:esident Elect:esident Elect:esident Elect:esident Elect:Anne E. Grant, LL.B, LL.M. (ADR), C.MedMediated Solutions

SecrSecrSecrSecrSecreeeeetartartartartar y:y:y:y:y:Kathryn M. Munn LL.B., Cert.ConRes.,C.Med., C.Arb.Munn Conflict Resolution Services

TTTTTrrrrreasureasureasureasureasurer:er:er:er:er:Enzo Carlucci, C.A., C.B.V.Duff & Phelps

V.PV.PV.PV.PV.P. P. P. P. P. Prrrrrofessional Deofessional Deofessional Deofessional Deofessional Devvvvvelopment:elopment:elopment:elopment:elopment:Kathryn M. Munn LL.B., Cert.ConRes.,C.Med., C.Arb.Munn Conflict Resolution Services

V.PV.PV.PV.PV.P. Education:. Education:. Education:. Education:. Education:Vacant

V.PV.PV.PV.PV.P. Ser. Ser. Ser. Ser. Services:vices:vices:vices:vices:Allan Revich, M.Ed.The Goal Focused Way

V.PV.PV.PV.PV.P. P. P. P. P. Prrrrrooooovince-Wide Inivince-Wide Inivince-Wide Inivince-Wide Inivince-Wide Initiativtiativtiativtiativtiatives:es:es:es:es:Richard J. Moore, LL.B., Acc.FM (OAFM),C.Med., C.Arb., CFM, Cer t.Med. (IMI)MDR Associates

PPPPPasasasasast Pt Pt Pt Pt Prrrrresident and V.Pesident and V.Pesident and V.Pesident and V.Pesident and V.P. Repr. Repr. Repr. Repr. RepresentingesentingesentingesentingesentingOntario on the National Board of DirOntario on the National Board of DirOntario on the National Board of DirOntario on the National Board of DirOntario on the National Board of DirectorsectorsectorsectorsectorsL. J. (Les) O’Connor (Past President), B.A., LL.B.WeirFoulds LLP

DirectorsRoger Alton, C.H.R.PRoger Alton, C.H.R.PRoger Alton, C.H.R.PRoger Alton, C.H.R.PRoger Alton, C.H.R.P., C.Med., C.Med., C.Med., C.Med., C.Med., C.Arb.., C.Arb.., C.Arb.., C.Arb.., C.Arb.Just Resolutions

Colm Brannigan, B.A., LL.B., LL.M., C.MedColm Brannigan, B.A., LL.B., LL.M., C.MedColm Brannigan, B.A., LL.B., LL.M., C.MedColm Brannigan, B.A., LL.B., LL.M., C.MedColm Brannigan, B.A., LL.B., LL.M., C.Med.....Mediation & Arbitration Services

PPPPPeeeeeter Bruer, B.A.ter Bruer, B.A.ter Bruer, B.A.ter Bruer, B.A.ter Bruer, B.A.Conflict Resolution Service, St. Stephen’sCommunity House

Cindy Dymond, B.A., LL.B., C.MedCindy Dymond, B.A., LL.B., C.MedCindy Dymond, B.A., LL.B., C.MedCindy Dymond, B.A., LL.B., C.MedCindy Dymond, B.A., LL.B., C.Med.....

Resa Eisen, B.A., MSWResa Eisen, B.A., MSWResa Eisen, B.A., MSWResa Eisen, B.A., MSWResa Eisen, B.A., MSW

Marathon Mediation

Michael ErdleMichael ErdleMichael ErdleMichael ErdleMichael Erdle,,,,, Q.Med Q.Med Q.Med Q.Med Q.Med.....Deeth Williams Wall LLP

Sander H. Gibson, Sander H. Gibson, Sander H. Gibson, Sander H. Gibson, Sander H. Gibson, B.A., B.C.L. C.Arb., MCI Arb.B.A., B.C.L. C.Arb., MCI Arb.B.A., B.C.L. C.Arb., MCI Arb.B.A., B.C.L. C.Arb., MCI Arb.B.A., B.C.L. C.Arb., MCI Arb.Sander Gibson Communications Inc.

Anne GotAnne GotAnne GotAnne GotAnne Gottlieb, LL.B., LL.M.tlieb, LL.B., LL.M.tlieb, LL.B., LL.M.tlieb, LL.B., LL.M.tlieb, LL.B., LL.M.Mediation at Work Ltd.

LLLLLorraine Joorraine Joorraine Joorraine Joorraine Joynt, MCynt, MCynt, MCynt, MCynt, MCA, B.A.A, B.A.A, B.A.A, B.A.A, B.A.A Place for Mediation

Kathleen KKathleen KKathleen KKathleen KKathleen Kelly, B.Comm., LL.B., LL.M.elly, B.Comm., LL.B., LL.M.elly, B.Comm., LL.B., LL.M.elly, B.Comm., LL.B., LL.M.elly, B.Comm., LL.B., LL.M.

Kelly International Settlement Services Inc.

BBBBBunnunnunnunnunny Macfy Macfy Macfy Macfy Macfarlane, C.Medarlane, C.Medarlane, C.Medarlane, C.Medarlane, C.Med.....SYZYGY Resolutions

Richard A. RRichard A. RRichard A. RRichard A. RRichard A. Russell, B.A., LL.B.ussell, B.A., LL.B.ussell, B.A., LL.B.ussell, B.A., LL.B.ussell, B.A., LL.B.Agree Dispute Resolution

Board of Directors

ADR Atlantic has…..

• held its AGM and Professional Develop-ment day June 25 in Halifax with GaryFurlong’s session on “Effective WorkplaceIntervention Strategies – arbitration, mediationand beyond…,” receiving top ratings.• delivered two successful professional devel-opment events, conducted C.Medassessments and embarked on exciting newmarketing initiatives designed to increaseStudent membership, improve membershipcommunication and promote awareness of

the benefits of membership• grown from 40 to 70 members in record time!• redesigned its NEW ADR Atlantic website (www.adratlantic.ca) using

Membership-friendly software• set plans to have web-conferencing software to manage Board

meetings which will be available to members (specific protocols andterms of use are being developed)

The ADR Atlantic Board has set the following goals for 2011-12:• marketing and continued growth in membership

• improved benefits of membership

• continuing focus on PD learning and networking

• planning specific PD sessions and marketing in NB, NS, PEI and NL

• reviewing and re-writing the ADRAI By-Laws

• continuing to focus on the designations

•• increasing participation in national events

• promoting and educating the public regarding ADR processes

�• effective operation of the Committee structure that includes: Tech-nology Committee, Marketing & Membership Committee, By-LawReview Committee, Chartered Designations Committees, ExecutiveCommittee

Update from the President of the ADR Atlantic Institute, Pamela Large-Moran

Mena Sestito was surprisedto receive specialacknowledgement of her 25years of service to the ADRInstitute of Ontario at theAnnual General Meeting and PDprogramme: The Art andScience of ADR. A custom-made necklace was presentedby ADRIO president JoyceYoung. Congratulations andthank you, Mena!

Congratulations and thank you, Mena!

ADR UPDATE / SUMMER 2011

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Arbitrator Lacks Jurisdiction toMake Injunction Orders Affecting Non-Parties.Arbitrator Cannot Make Order Without Notice To All Arbitration Parties.

By Orie Niedzviecki, Evelyn Perez Youssoufian and Igor Ellyn, QC, CS, FCIArb., Ellyn Law LLP

Justice Paul Perell’s recent deci-sion in Farah v. SauvageauHoldings Inc., 2011 ONSC 1819(CanLII)1 addresses so manyimportant issues affecting arbitra-tion that it should be on everyarbitrator’s and every arbitrationcounsel’s mandatory reading list.

We preface our discussion bynoting that we were counsel forthe applicants in this case andcontinue as counsel in the arbitra-tion before the Hon. R.S.Montgomery, QC. With this inmind, this article provides informa-tion about what the Courtdecided, without critique. Therehas been no appeal by eitherparty from Justice Perell’s deci-sion.

In the space of 130 short para-graphs, the erudite jurist of theOntario Superior Court of Justiceaddresses several important issuesaffecting arbitral jurisdiction,particularly:

• An arbitrator’s jurisdiction tomake an ex parte award;

• An arbitrator’s jurisdiction tomake an order affecting non-parties; and

• An arbitrator’s jurisdiction togrant a Mareva injunction.

However, these points are not theonly reasons why Farah v.Sauvageau is significant. JusticePerell also provides guidance onthe following arbitration questions:

• Whether an arbitrator should bedisqualified for exceeding his/her jurisdiction;

• What to do about an arbitralaward, which has been filed in

a Court and enforced withoutresorting to s.50 of the Arbitra-tion Act (“the Act”); and

• Whether an arbitrator has all thepowers of a judge.

Justice Perell also applies therarely-used judicial jurisdictionwhich permits a judge to turn anymotion into a motion for judg-ment. He does so in respect of themotion to set aside a certificateof pending litigation (“CPL”).Instead of dealing with the CPLdirectly, Perell J. directed that theconveyance in the case be setaside and the property be re-conveyed to both applicants.

FactsFarah owned a collection agencyknown as CSC, which he listed forsale. He wanted to move toFlorida. Sauvageau is a Torontolawyer who was interested inpurchasing the collectionagency. A share purchase agree-ment was made and thetransaction closed in December2009. Sauvageau incorporated aHoldco to own his shares in thecollection agency. On closing,Holdco paid $600,000.

Farah used the proceeds of saleto discharge the mortgage on thehome he owned with his wife, topay debts and to pay his brotherfor his interest in CSC. A weekafter closing, Farah transferred hisundivided interest in his familyhome to his wife. He had no debtsat the time. He knew of no claimby Sauvageau. He wanted tofacilitate his move to Florida,where he was going to look for ajob, while his wife stayed in On-

EEEEEvvvvvelyn Pelyn Pelyn Pelyn Pelyn Perererererez Yez Yez Yez Yez Youssoufianoussoufianoussoufianoussoufianoussoufian has been an associate atEllyn Law LLP since 2007. She is a graduate of thelaw schools of the University of Windsor and theUniversity of Detroit-Mercy. She practices businesslitigation and arbitration. Evelyn also speaks Span-ish and Armenian fluently.

Igor Ellyn, QC, CS, FCIArb.Igor Ellyn, QC, CS, FCIArb.Igor Ellyn, QC, CS, FCIArb.Igor Ellyn, QC, CS, FCIArb.Igor Ellyn, QC, CS, FCIArb. is the senior par tner ofEllyn Law LLP. He is a cer tified specialist in civillitigation and a char tered arbitrator and mediator. He practices business litigation and arbitration withemphasis on complex shareholder and corporatematters. He is a past president of Ontario Bar As-sociation and speaks French, German, Romanianand Hebrew.

Orie NiedzOrie NiedzOrie NiedzOrie NiedzOrie Niedzvieckivieckivieckivieckiviecki is a partner of Ellyn Law LLP. Hepractices business litigation and arbitration, employ-ment law and estate litigation. He has practicedlaw in Ontario since 1999 and is also admitted tothe District of Columbia Bar.

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tario to deal with selling thehouse.

A few months after closing,Holdco, represented bySauvageau himself, sued Farahfor fraudulent misrepresentationsseeking rescission or damages formore than the purchase price. Healso commenced a FraudulentConveyances Act action againstFarah’s wife claiming the transferof title was fraudulent and ob-tained a CPL without notice.Farah’s first legal counsel andSauvageau agreed that all legalissues in both actions (except forthe motion to discharge the CPL)be referred for arbitration by theHon. R.S. Montgomery, QC of ADRChambers (“the arbitrator”).

Farah’s wife was not involved inthe transaction. Sauvageau,however, without formally amend-ing his pleadings, fashioned afraud claim against her based onher lie or mistake as to whethershe was pregnant.

In November 2010, Sauvageauattended before the arbitratorwithout notice to Farah or his wifeto seek a Mareva injunctionrestraining them from disposing ofor using any of their assets. Thearbitrator granted a far-reachingex parte Mareva injunction re-straining, inter alia, “all personswith notice of this injunction”. Theorder also required all banks tofreeze Farah and his wife’s ac-counts and to deliver all recordsof their financial activities.

Sauvageau then filed the arbitra-tor’s order in Superior Court officein Newmarket in the existingactions against Farah and hiswife. The Registrar’s office issuedand entered the arbitrator’s ordereven though there was no appli-cation for enforcement under s.50of the Act. The arbitrator’s order,with its appearance of legitimacy,was then served on Farah and hiswife, on Farah’s employer, on herfather and on banks where Farahand his wife did business, all with

devastating effect.

Farah’s counsel moved beforethe arbitrator to set aside the exparte order on the basis that itwas made without jurisdiction andasked the arbitrator to recusehimself. The arbitrator upheld hisdecision and refused the recusalmotion. He reasoned that thearbitration clause and the Actentitled him to issue all the rem-edies of a judge, includingauthority to grant the Marevainjunction and stated he had notpre-judged the case.

Against this backdrop, Farah andhis wife applied to the Court to setaside the arbitrator’s Marevainjunction and to request that thearbitrator be disqualified on thebasis that by granting the exparte Mareva injunction, thearbitrator had concluded thatFarah was a fraudster and thatthe playing field was unbalanced.

Justice Perell’s decisionIt is well-settled that judicial inter-vention in the arbitral process isstrictly limited to situations con-templated by the Act. This is inkeeping with the modern ap-proach to arbitration that sees itas an autonomous, self-con-tained, self-sufficient processunder which the parties agree tohave their disputes resolved by anarbitrator, not by the courts. TheCourt has jurisdiction to interveneonly where the arbitrator hasexceeded his/her jurisdiction as tothe subject matter of the disputeand where the arbitrator hastreated the parties unfairly. 2

After thoroughly reviewing thefacts of the case, Justice Perellconcluded that the arbitrator didnot have the same jurisdiction asa judge of the Superior Court.While the arbitrator had thejurisdiction to make an injunctiveorder against Farah and his wifeonly, he did not have jurisdictionto grant a Mareva injunctionaffecting non-parties to thearbitration agreement. The ADR

Chambers Arbitration Rules pro-hibited ex parte communicationswith the arbitrator. These Ruleswere not trumped by the arbitra-tion agreement which madecertain provisions of the Rules ofCivil Procedure applicable

Justice Perell noted that arbitra-tors depend upon the Act andthe arbitration agreement for theirjurisdiction. The Legislature has notgiven arbitrators injunctive powerover third parties and the privateagreement of the parties to theagreement to arbitrate cannotinvade the rights of non-parties.

Sections 6 and 8(1) of the Actgive the Court the power to assistthe arbitrator by providing aninjunction and enforcement orderwhere required. It followed thatthe arbitrator did not have juris-diction to grant a Marevainjunction affecting third parties.Further, the filing of the arbitralMareva Order in the Court officewas contrary to s.50 of the Act.The arbitral Mareva order, whichPerell J. referred to as “bogus”,was set aside. However, Perell J.held that the circumstancesnarrowly justified a judicialMareva order against Farah only.The Mareva order against Farah’swife was set aside with costs.

Notwithstanding the arbitrator’sjurisdictional error, Perell J. did notdisqualify him. Perell J. held thatthe arbitrator’s error was not adenial of natural justice nor wasFarah’s apprehension of biasreasonable. The Court also heldthat the best way to deal with theproperty transfer was simply todirect that the title be transferredback to joint tenancy betweenFarah and his wife. This made theCPL unnecessary.

This case contains importantlessons which will inform proce-dure and substantive law in futurecases. It also highlights that evenwhere a court action precedesarbitration, the arbitration ordercannot be filed in court without

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resort to the enforcement proce-dure in s. 50 of the Act if filed inthe Court office. An arbitral orderfiled in Court as Sauvageau did inthis case is bogus.

Justice Perell’s decision reminds usthat arbitrators are not SuperiorCourt judges. Arbitrators areclothed only with the authority the

1 See www.canlii.org or this link: http://bit.ly/hdNQDn.2 Inforica Inc. v. CGI Information Systems and Management Consultants Inc,

2009 ONCA 642 at para. 14, 27.

parties to the arbitration agree-ment have given them. Theycannot affect the rights of non-parties. Where the arbitrationagreement is silent or incorpo-rates by reference, the Act and

the agreed upon arbitration rulesmay provide assistance. Withinthese parameters, the arbitrator isunable to proceed ex partebecause an informed arbitrationparty would not permit it.

‘A’ seeks a loan from the Bank.

The bank does its due diligenceand grants the loan to ‘A’.

‘A’ defaults on the loan.

The Bank commences litigationagainst ‘A’ for the outstanding

debt by issuing a Statementof Claim.

‘A’ responds with a Statementof Defence.

Before the matter proceedsto Court, in Ontario, theremust first be a compulsory

Mandatory Mediation.

by Harvey M. Haber, Q.C., J.D., LSM, DSA, C.MED, C.ARB, B.A.

Mediation Dealing With Debt Collection OntarioEither both Counsel agree on aMediator acceptable to both ofthem, or failing agreement, theCourt will designate a Mediator.

The Mediator then contacts bothCounsel to select a date for theMediation to be heard, which issatisfactory as well to the Media-tor.

The Mediator then prepares aMediation Agreement setting outthe terms of Mediation, i.e., thetime, place and date where theMediation is to be held, theMandatory Mediation Fee to bepaid by each Party, the Counselacting for each Party, the CourtAction Number; Mediator’s confi-dentiality; the fact that theMediator will not be called as awitness to testify as to the fact ofthe mediation, or as to any oral orwritten communication made atany of the mediation; what hap-pens in the event the mediation iscancelled; the exclusion of liabil-ity of the Mediator, and sets outfurther guidelines for the Media-tion, and other relevant terms - tobe signed by each Counsel,together with 2 forms - Form 24.1B- Notice by Assigned Mediator, &Form 24.1C - Statement of Issues.

Counsel and their clients attendat the agreed upon location, time& date, together with the Mediator.

The meeting is without prejudiceto the parties rights.

The Mediator confirms that he/shehas received the signed Mediation

Agreement and the MandatoryMediation Fee, sets out the guide-lines for the Mediation, listens tothe Plaintiff’s Counsel, and thenasks the Plaintiff if he/she wants toadd anything.

The Mediator then listens tothe Defendant’s Counsel andthen asks the Defendant if he/shewants to add anything.

It is important that the Partiesthemselves have an opportunityto tell their side of the matter.

The Mediator then opens theMediation up to both Counsel todispute their case with eachother.

In most cases, the argument isover the amount in dispute.

The Plaintiff’s claim being higherthan what the Defendant is pre-pared to pay.

There is a magic moment whenboth sides have had their say.

It is at this stage that the Mediatorputs both parties in separaterooms (it’s called “caucusing”) and then goes back and forthbetween them to see if an agree-able figure can be reached tosettle the matter.

If it can be settled, then theMediator puts both parties andtheir Counsel together and hasone of the Counsel draft a Settle-ment Agreement, subject to theapproval of the other Counsel.

Once the form of the SettlementAgreement is approved by both

Harvey M. Haber Q.C., J.D., LSM,DSA, C.MED, C.ARB, B.A.

Senior Par tner, Goldman SloanNash & Haber LLPhaber@gsnh.com

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Counsel (and by theMediator) the Parties and theirCounsel sign the SettlementAgreement, and both Counselagree to withdraw the action.

If it cannot be settled at theMandatory Mediation, it is verypossible it can be settled prior tothe matter being heard by theCourt.

And going to Court can be veryexpensive.

In one of my books, I indicatedthat a 3 day Court trial brought bya Plaintiff could cost $38,200.00.Today, that cost could be$60,000.00 or even higher.

It makes a big difference if the

Parties are aware of the cost oflitigation, as the amount involvedin the Mediation may be much less.

I have personally conducted over100 mediations and I find thatonce the parties are made awareof the potential cost of the Me-diation, they both view settlementwith a much more favourableattitude.

There is also Private Mediation,where the Parties agree to medi-ate the matter with theirhand-picked Mediator by way ofa signed Mediation Agreement(setting out the terms of thePrivate Mediation), but in a Pri-vate Mediation both

parties generally pay 50% of theMediator’s regular Fee (as op-posed to a Court mandatedMediation Fee).

Please see below the MandatoryMediation Agreement that I use,which I trust and which may be ofassistance to you.

In addition, it is worth notingthat the ADR Institute ofCanada has just published itsnew Mediation Rules and Codeof Conduct for Mediators.These Rules provide a Manda-tory Mediation Agreement thatcan be used in PrivateMediations.

FORM 24.1B_____________ v. ______________

Court File No. _______________

NOTICE BY ASSIGNED MEDIATORTO: TEL # FAX #________________ _____Barrister & SolicitorSolicitor for Plaintiff,_____________________________________________________________ LLPSolicitor for Defendant,________________________

The notice of name of mediator and date of session (Form 24.1A) required by rule 24.1.09 of the Rules of Civil Procedure has now beenfiled in this action. Accordingly, I have been designated as the mediator to conduct the mediation session under Rule 24.1. I am a mediatornamed in the list of mediators for Toronto.The mediation session will take place on __________, ________________, 2010 at 9:00 a.m. at the offices of Goldman Sloan Nash& Haber LLP, 480 University Avenue, Suite 1600, Toronto, Ontario M5G 1V2.Unless the court orders otherwise, you are required to attend this mediation session.You are required to file a Statement of Issues (Form 24.1C) by ___________, _____________, 2010 (7 days before the mediationsession). A blank copy of the form is attached.When you attend the mediation session, you should bring with you any documents that you consider of central importance in the action.You should plan to remain throughout the scheduled time. If you need another person’s approval before agreeing to a settlement, youshould make arrangements before the mediation session to ensure that you have already telephone access to that person throughout thesession, even outside regular business hours.

YOU MAY BE PENALIZED UNDER RULE 24.1.13 IF YOU FAIL TO FILE A STATEMENTOF ISSUES OR FAIL TO ATTEND THE MEDIATION SESSION.

_____________, 2010

cc: Mediation Coordinator by fax 416-314-1360 Ontario Mandatory Mediation Program

Harvey M. Haber, Q.C., J.D., LSMGoldman, Sloan, Nash & Haber LLP

480 University Avenue, Suite 1600Toronto Ontario M5G 1V2

Tel: 416-597-3392 Fax: 416-597-3370

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Middlesex County, including London isnot a jurisdiction with mandatorymediation although we are situatedabout equidistant between two suchjurisdictions. A survey questionnairewas developed by Paula Puddy, CLEdirector for the Middlesex Law Asso-ciation; panel members for theprogram, Vince Calzonetti and GregVanBerkel; and myself as ProgramChair with input from the OBA- ADRsection members.

The purpose of this survey was togather general information about theuse of mediation, opinion aboutmandatory mediation and selectionof mediators. This was used as back-ground for the seminar on March 3.The survey was sent by email to Mid-dlesex Law Association members onFebruary 3, 2011.

The 8 question survey asked about the length ofexperience in practicing law, average participationin mediations per year, areas of law of mediationparticipation, hiring of local mediators, level ofcomfort and knowledge about mandatory media-tion, participation in mandatory mediation in otherjurisdictions, level of support and willingness to par-ticipate in a planning group for the introduction ofmandatory mediation in London.

Thank you to the 56 members of the Middlesex LawAssociation who took the time to respond, about a7 % response rate.

DemographicsThe length of law practice experience ranged fromzero to 21 years and over. More than half of therespondents (52%) had practice experience lessthan or equal to 15 years and the rest of the group(48%) had 16 years and more practice experience.

Frequency of Participation in MediationsOne survey question was used to determine thefrequency of mediations that members participatedin on average per year. A comparison was madebetween the frequency of participation in media-

London Lawyers Consider Mediation By Kathryn Munn

On March 3, 2011 the seminar “Winning Mediation Strategies” waspresented in London, Ontario by the Middlesex Law Associationand the ADR section of the Ontario Bar Association (OBA).

tion and the years of practice experi-ence. There was variability among therespondents’ responses. The lawyerswho participated in more than 15mediations per year were those whohad practice experience 11 years andover. Lawyers (50%) with experience of16-20 years tended to have partici-pated in more mediations per year(>15) than the rest of their colleagues,with either less or greater practiceexperience.

None of the lawyers with experienceup to 10 years has reached the level of15 mediations per year. These lessexperienced lawyers tended to be themajority in the groups of respondentswho participated 0- 2 mediations peryear. For example 58% of those withpractice experience 0 - 5 years and ofthose with 6-10 years of experience

participated in 2 or fewer mediations per year.While this may be reasonable for lawyers with experi-ence under 5 years, it is surprising for those who haveexperience closer to 10 years. Another interestingfinding was that respondents with experience of 16-20 years conducted more mediations per year thandid those who had more practice experience (> 21years).

Areas of Law of Mediation ParticipationTo determine the type of areas of law of mediationsthat respondents participate in, a list containing thefollowing options was provided in the survey: con-struction law, personal injury and insurance defence,family law, and estate law. Another categorynamed “Other” was provided for respondents whoparticipated in mediations in other areas of law.Labour and Employment and Commercial were byfar the two most frequently identified responses inthe “Other” category.

The area of law of mediations with the highestparticipation rate (66%, 37/56) was personal injuryand insurance defence. Of these, 24.3% had 0 to 5years in practice; 21.6% had 6 to 10 years in practiceand 27% had 21+ years in practice. Only 3 of the 37

Kathryn Munn, Munn ConflictResolution Services, London,

Ontario

ADR UPDATE / SUMMER 2011

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As indicated in Figure 1, in the other areas of law ofmediation participation such as: construction, fam-ily, labour and employment, and commercial, theproportionate rate of participation was almostequally distributed among all groups although therewas a slightly higher frequency for those lawyerswith the most experience. It was found that the onlygroup using mediation for estate law were respond-ents with the highest level of experience (> 21 years).

The other areas of law in which respondents indi-cated their participation in mediation were:

• Human rights• Regulatory offenses• Expropriations• Insurance claims• Municipal• Class actions• Professional negligence

Hiring a Local Mediator to Facilitate MediationsThe results showed that 53% of the members havehired local mediators to facilitate their mediationsand 47% of them did not. Interestingly, those lawyerswho had practice experience over 21 years andthose who had conducted more than 15 mediationsper year were more likely to hire local mediatorsthan lawyers with less experience.

Participation in Mandatory Mediationsin Other JurisdictionsOverall, 55% of the respondents (31/56) have partici-pated in mandatory mediations in other jurisdictions

respondents (8%) were 11 to 15 years in practice(Figure 1). Lawyers with practice experience 16 to20 years were the only ones who did not participateat all in mediations in this area of law. Althoughmediation in this area of law was predominantlybeing used by lawyers with the least experience (0-5years) and (6-10 years) and by lawyers with the mostexperience (21+ years), the relative complexity ofthe cases is not clear. Is this phenomenon related todiffering experience levels of plaintiff lawyers andinsurance defence lawyers or to other factors?

such as Toronto or Windsor and 45% of them indi-cated that they did not. Of the 31 members whoparticipated in the mandatory mediations, 12 werelawyers (62%, 12/19) with experience 21 years andover, and 5 were lawyers (62%, 5/8) with experience16-20 years. In the experience categories from 6 to10 years and 11 to 15 years the participation rate inmandatory mediation was about 50% ( 3 and 6respectively). Only 45 % of lawyers (5/11) with experi-ence less than 5 years (0-5 years) participated inmandatory mediations.

Comfort and KnowledgeLevel with Mandatory MediationsThe results also showed that only 49% of the mem-bers who responded to the survey questionnaireindicated that they felt comfortable and knowl-edgeable with the mandatory mediation program.Again, the level of experience was shown to be aninfluential factor. This information clearly indicatesthat further training on mandatory mediation mightbe needed to improve the knowledge and confi-dence level.

Figure 1:Areas of Law of Mediation’ Par ticipation and Experience Level

As shown in Figure 2, of the 25 respondents who feltcomfortable and knowledgeable with mandatorymediations, 40% were those who have long prac-tice experience (> 21 years) followed byrespondents (20%) who had practice experiencewithin a range of 16 -20 years. Although it makessense that the more experience you have, the morecomfortable and knowledgeable you feel, findingsshowed that this was not the case. The group ofrespondents (16%) with lowest practice experience(0-5 years) felt a higher level of comfort and knowl-edge with mandatory mediations than therespondents with practice experience 6-10 years(12%) or 16-20 years (12%).

Supporting the Introductionof Mandatory MediationRespondents were asked whether they would sup-

Figure 2:Respondents’ Comfort and Knowledge Level with Mandatory Mediations

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ADR UPDATE / SUMMER 2011

port the introduction of mandatory mediation toLondon. The majority of the respondents (58%) weresupportive of the introduction of mandatory media-tion to London. The highest response rate (83%) forbeing supportive to the introduction of the manda-tory mediation was found in the group ofrespondents who had the longest practice experi-ence (>21 years) whereas the lowest response rate(25%) was found among lawyers with practiceexperience from 16-20 years, even though they haveonly slightly less experience than the group with 21and more years. It was not a surprise that the lowresponse rate found in this group of respondents (16-20 years) matched up with their level of comfort andknowledge with mandatory mediations, also foundto be the lowest. We can only speculate about thereasons why this finding emerged.

Also an interesting finding was that 68% of lawyers(0 – 5 years) who had < 2 mediations per year and57% of lawyers (> 21 year experience) who had > 15mediations per year were more supportive to theintroduction of mandatory mediation to Londonthan the rest of the groups.

Willingness to Participate in a Planning Group inSupport of a Pilot Project for Mandatory MediationAn attempt was made to determine the respond-ents’ willingness to participate in a planning group todevelop a pilot project if they supported the intro-duction of mandatory mediation to London area. Aslight difference was found between the respond-ents who supported mandatory mediation in London(48%) and those who did not (52%). Eighty-fivepercent of those who said yes to mandatory media-

tion as described in the previous section were willingto be part of the planning group. Surprisingly, 50% ofthose who were not in favour of the introduction ofmandatory mediation in London also said they werewilling to be part of the planning group. Given theworkload levels for London lawyers, in my view thispositive response rate demonstrated a surprisinglevel of enthusiasm by those respondents who werewilling to be part of the planning group.

ConclusionEven though this was our first attempt to collectinformation in this manner, I was impressed with thelevel of response and with what we found out. Themore experienced lawyers (21+ years) and thoseparticipating more in mediation (>15 per year)tended to hire local mediators. It was surprising tofind that lawyers with 16 to 20 years experience inpractice reported a higher overall participation ratein number of mediations per year although a lowerlevel of participation in mediation in several areas oflaw. It appears that more education is needed toimprove the lawyers’ knowledge and confidencelevel with mandatory mediation. A majority of therespondents were supportive of the introduction ofmandatory mediation to London. Many of thoselawyers supportive of mandatory mediation in Lon-don and even half of those who were not supportivewere willing to contribute by being part of a plan-ning group for a pilot project to introducemandatory mediation. Now we need to considerthe next steps forward from this starting point.

Thank you to Paula Puddy, the OBA-ADR Section, to my colleagues andfellow presenters, Vince Calzonetti and Greg Van Berkel , and for researchassistance, Luljeta Pallaveshi.

The International Institute for Conflict Prevention& Resolution (CPR Institute), presented its firstAward for Excellence in Alternative DisputeResolution for a Small Law Firm to Toronto'sGoldman Sloan Nash & Haber LLP (GSNH) "Forcommitment to principled and creative conflictmanagement and resolution” stating that “Theyhave set a successful benchmark for addressingresolution, prevention, and management of majordisputes in multiple practice areas."David Bristow accepted the award on behalf ofGSNH. CPR Institute is a global, non-profit thinktank and alliance of corporations, law firms,scholars, and public institutions focused oncommercial conflict prevention and alternativedispute resolution and conflict management.We congratulate Team GSNH for receiving thisprestigious award.

ADR Institute of Ontario congratulates Goldman Sloan Nash and Haber LLP

ADR UPDATE / SUMMER 2011

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What does Lord Neuberger meanwhen he claims that mediation isnot a “substitute” for justice? Itsounds like he means that media-tion is something different fromand inferior to justice, the way abaker might caution one thatNutraSweet or sucralose wouldnot be adequate substitutes forsugar in the chocolate chipcookie recipe.

“….Justice is Open to All – Like theRitz Hotel”

I fear that this is the meaning thatwill be assumed by those whohear this remark out of contextand fail to read his entire lecture. Ithink it is fair to say that LordNeuberger means that ADR is nota substitute for the justice system.He is using the word “justice” tomean something like “thosedecisions that are handed downformally through the legal sys-tem.” Now, while it is legitimate touse the word “justice” in such away, this is probably not themeaning that most people havein mind when they use the word.We allow for the possibility thatcertain laws may be unjust andthat the administration of the lawitself may be unjust. Of course,Lord Neuberger recognizes thistoo. He even quotes Sir JamesMathew’s ironic remark that, “InEngland, justice is open to all – likethe Ritz Hotel.” Yet while LordNeuberger acknowledges thatequal access to the law is far from

These are the final words of theGordon Slynn Memorial Lecture2010, given by Lord Neuberger ofAbbotsbury, the Master of theRolls. (The “Master of the Rolls” isthe Monty-Pythonesque title givento the second most senior judge inEngland and Wales. He is thepresiding officer of the Court ofAppeal, Civil Division.)

Lord Neuberger assures his audi-ence that he is a “keensupporter” of ADR; his worry is thatthe tendency to treat mediationas good and litigation as badmay be inconsistent with a com-mitment to equal access tojustice. His argument goes like this:Equal access to the law is afundamental component ofdemocracy. The civil justicesystem is not merely a serviceoffered in the marketplace; toregard it as such is to misinterpretits constitutional function. Media-tion and ADR, in contrast, are notpart of the state; they are servicesoffered to those in dispute. Toinsist that disputants try mediationbefore litigation places an addi-tional financial barrier to thejustice system, thus compromisingthe principle of equal access tothe courts. Disputants may ac-cept a mediated solution thatdoes not reflect their legal rightsbecause they cannot afford bothto mediate and to litigate.

Lord Neuberger gave this lectureon November 10, 2010, just daysbefore the British governmentannounced cuts to legal aid forcivil cases and increased supportfor mediation and ADR. His re-marks have to be interpreted inlight of the current political situa-tion in the U.K.

Mediation as a Substitute for Justice?“Mediation is a complement to justice.It cannot ever be a substitute for justice.”

By Jeanette Bicknell

being a reality, I don’t think hemakes enough of existing barri-ers – ones that have nothing todo with the proposed expansionof ADR.

No one would disagree thatmediation is not a substitute forthe civil justice system. Even themost enthusiastic ADR supportersrecognize that some disputes areinappropriate for mediation.There are other reasons why“mediation” and “justice” shouldnot be opposed to one another.Justice can be a quality of proc-esses or of outcomes. Mediationand litigation are both processesof dispute resolution. As such,each can be conducted fairly(justly) or not. Litigation and theformal legal system do not have amonopoly on fairness. Similarly,the outcomes of either of theseprocesses might be fair or not. Thefact that a settlement has beenvoluntarily assumed or forcedupon disputants does not tell uswhether or not it is fair. Finally,mediation and the legal systemneed not be seen as in competi-tion with one another. Amediated settlement may beformalized as a contract, a docu-ment with the power of the courtsbehind it.

Jeanette Bicknell, Ph.D. is a mediator andbusiness ethics consultant in Toronto. Shetaught philosophy at the university level forseveral years, and is the author of Why MusicMoves Us (Palgrave, 2009).

Please note: All ads are subject to approval. janet@adrontario.ca / 416-487-4447 ext 105

Now accepting Classified Ads— ask Janet for ad rates today!

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ADR UPDATE / SUMMER 2011

(parts ones and two appearedrespectively in the ADRIO newslet-ters of 2010 Fall-Winter and 2011Spring-Summer editions). Now thetripod of Values-Law-Justice iscomplete and we can sit on thenegotiation chair with theseperspectives in mind. My thesishas been that our society’s prob-lem-solving approaches seem tofirst dwell on ‘what is the law”,then ‘how does the law servejustice’ and finally, ‘what role dovalues play’, which I contend is allbackwards. The approach shouldbe first, ‘what are our values’, andthen, ‘which laws can serve thosevalues in the pursuit of Justice’.

There was a cartoon long agoshowing a person being crushedby a fallen filing cabinet with thecaption saying that, at one time,the first person people called wasa religious leader, then helpers,until nowadays people first call alawyer! I like to say to people“stay out of trouble, if you can’t,don’t get caught; but if you getcaught, call a lawyer, then you’rereally in trouble!” I believe oursociety is in trouble when ourtrouble-shooting is just that,‘shooting,” in the manner of‘shoot first, talk later’ and thendeal with the consequences.

Litigation is a more civilized formof warfare, but it has many of thesame traits. However, we candraw upon the history of diplo-macy and treaties in the world atlarge, notwithstanding all of theconflicts, to argue that a greatdeal is done through dialogueand negotiation internationally,which does not receive the atten-tion it deserves. I am convinced

By Ernest G. Tannis, B.A. LL.B. C. Med. Acc. FM (OAFM) Solicitor and Mediator

Part 3 “Do We Have A DutyTo Negotiate In Good Faith?”

one of the root causes of thestresses and costs of our legalsystem is that historically we madea mistake in merging the disci-plines of Barrister and Solicitorwhich has left a vast majority ofthe population unable to accessthe Courts, with almost fifty percent of litigants being self-repre-sented and family law being themain reason people enter theCourt system. This is the conclu-sions drawn by a recent studywritten by former Ontario SuperiorCourt Chief Jus-tice McMurtry.

Suffice it to statethat, withoutforgetting theenormous strides inimprovements toour legal (notjustice) systemthanks to all those involved in theadministration of the courts,including Judges and Lawyers,and advancements in pro bonoservices, as one Judge said at asession years ago, ‘we don’t needto change any laws, we onlyneed to change our attitude”. AsFrancis Bacon wrote in Advanceof Learning, Book II, #25: “...if Ihave in any point receded fromthat which is commonly received,it hath been with a purpose ofproceeding in melius (towards thebetter) and not in aliud (towardssomething different).” In my 1989book Alternative Dispute Resolu-tion That Works!, there is a chapterthat ADR is alternatives, not toanything, but for people, givingindividuals options which can varyaccording to diversity in cultures.The ultimate goal (which for me

stands for ‘greater opportunitiesand living standards’) of thisuniversal urge is for Justice, onwhich note I wish to conclude thisseries with the conclusion from theintroduction in my first book:

”What, then, is justice? Twentyyears ago former Prime MinisterPierre Elliott Trudeau called for a“just” society in Canada. Only by

delving into the etymology of theword “justice” can we gain direc-tion? According to the 1971 book,An Aid to Bible understanding, theHebrew meaning of justice is,“what is right in a fair and impar-tial way” and in accordance witha “standard” or “conveying theidea of a particular plan, custom,rule or procedure for doingthings.” Ultimately, justice is whatis known as righteousness since“whereas justice has legal asso-ciations, basically there is nodistinction between justice andrighteousness.” Or we can consultthe Greek meaning of justice,which the book says is avengingor looking towards a judgment.“The proper exercise of justice bygovernment authority likewisecontributes to the happiness and

Ernest G. Tannis B.A. LL.B. C.Med. Acc. FM

This is the third and final part of the three-part series on this topic

It might be said that fair is

meeting goodness with goodness,

evil with justice, and all things

and all people with love.

ADR UPDATE / SUMMER 2011

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well-being of its subjects.”

In Chadman’s Cyclopedia ofLaw, Vol. 1, the great English jurist,Sir William Blackstone is quoted:“(God) has so intimately con-nected, so inseparably woven thelaws of eternal justice with thehappiness of each individual, thatthe latter cannot be attained butby observing the former; and, ifthe former be punctually obeyed,it cannot but induce the latter.”Indeed, a former Chief Justice ofthe United States Supreme Courttraced the source of our commonlaw to the Ten Commandments.Black’s Law Dictionary, 4th edi-tion, in the context ofjurisprudence, cites case law toarrive at a definition of justice as“the constant and perpetualdisposition to render every manhis due” and includes the com-ments of John Bouvier (1787–1851)

that “in the most extensive sensethe word ‘justice’ differs little from‘virtue,’ for it includes within itselfthe whole circle of virtues.” Jus-tice has also been described as“the crowning glory of virtues”(Cicero ), “the great standingpolicy of civil society” (EdmundBurke), and “truth in action”(Joseph Joubert).

Often our understanding of justiceincludes the concept of being“fair”— and what is fair? To bor-row from an ancient adage,perhaps it might be said that fair ismeeting goodness with goodness,evil with justice, and all things andall people with love. In You andthe Law it is recalled: “The Hon-ourable James C. McRuer, formerChief Justice of Ontario, oncewrote that although justice is aterm that could be no moreprecisely defined than love or

hate or charity, it is clearly some-thing that the human heartacknowledges.” The concludingparagraph of Mr. Justice Zuber’sreport to the Attorney General onthe Ontario court system is afitting end to this series:

“If some of the recommendationsin this report do not find favourwith the governing authorities,then other recommendationsshould be devised and imple-mented promptly. It would bewrong to confuse action with anendless circle of further studies,analyses, and reports whichwould likely do little more thanlead to eventual paralyses; at thispoint we would do well to recallan ancient teaching:

“God is urgent about justice;for upon justice the world de-pends…””

Ernest G. Tannis B.A. LL.B. C. Med. Acc. FM(OAFM) Solicitor and Mediator, Counsel Francis/Louber t LLP, ernestgtannis@adrcentre.org

Sadly, and quite unexpectedly, Ireceived an email yesterday(March 10, 2011) from the Volun-teer Co-ordinator at ConflictMediation Services of Downsview(CMSD) that they were shuttingtheir doors after a 22 year life inthe community. Due to budgetcuts, all employees were let go,leaving those of us who werevolunteer victim/offender media-tors without a home.

I have been a volunteer mediatorwith CMSD since May 2008, work-ing in their Adult and YouthRestorative Justice Programs.Both programs were designed toassist victim and offenders willingto volunteer, the opportunity toparticipate in a pre-trial media-tion to try to resolve their conflictoutside of the jurisdiction of adju-dication proceedings. In my timeand experiences with CMSD, I

By Samantha Greenspan

The Miscarriage of Restorative Justice: Canada’sInability to Carry Rehabilitation to Term

experienced many successful,and some not so successful,resolutions, helping to relieve the

Samantha Greenspan is currently anM.A. student at the University of Toronto

in the Centre of Criminology andSociolegal Studies.

strain on our criminal justicesystem, and helping to repair andrebalance the harm and powercaused by the criminal incident.

This development brings to thefore a question that has plaguedme since my journey began in thepursuits of restorative justice. Whatare RJ mediators supposed to do?It unravels an even longer threadof questions, namely: Why dorestorative justice mediators haveto volunteer their time? Why isrestorative justice given such littlerespect or perceived so frivolouslyby criminal justice professionals?Why is there so little understand-ing and such great cynicismabout the efficacy of victim/offender mediations? Do weactually have to privatize restora-tive justice as an industry to startgetting the recognition and

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ADR UPDATE / SUMMER 2011

seriousness it deserves by lawyers,judges and our fellow mediators?

But an even more basic question,one that I frequently receivewhen I talk about restorativejustice is, “Hmm, that’s interesting.What is that?” This leads me tothink that the only people whoreally know what restorativejustice is are a handful of crimi-nologists, a handful of lawyers,and even smaller percentage ofjudges, and a whole lot of strug-gling RJ mediators. Or maybethat’s just the cynic in me startingto surface.

So here, for your educationalpleasure, is one of the most con-cise and explicative definitions ofrestorative justice that I havefound to date:

[R]estorative justice is “a proc-ess whereby all the parties witha stake in a particular offencecome together to resolve col-lectively how to deal with theaftermath of the offence and itsimplications for the future”.Restorative justice is used as anumbrella term to describe anynumber of programs that viewcrime and the response to crimethrough a restorative lens.Victim offender mediationprograms (VOMP), victim of-fender reconciliation programs(VORP), family groupconferencing, communityreparative boards, sentencingcircles, and sentencing panelsare just a few of the names nowused to denote restorativeprograms. Declan Roche (2003)

states, “Although this rangeillustrates confusion about themeaning and application ofrestorative justice, there remain

four fundamental ideals: person-alism, reparation, reintegration,and participation” (Gerkin, 226).

This statement clearly defines andexpresses the purposes and goalsof restorative justice. Based onmy own education in and experi-ences with restorative justice, forme the essence of restorativejustice is that it gives a voice. It isnot meant to replace our criminaljustice system, which is quitesuperior in a global context. Butlike everything else in life, evenour criminal justice system is notperfect. What restorative justicedoes do is help to improve uponthese imperfec-tions. It gives avoice to the of-fender and to thevictim and to thestakeholders in thecrime.

John Braithwaite, adistinguished crimi-nologist at Australian NationalUniversity and one of the foundersof the contemporary restorativejustice movement, explains thatrestorative justice is meant to takepower away from the state indeciding the fate of crime andcriminals and return the powerback to the people directlyinvolved, namely the victims, theoffenders and the stakeholders(community). It is not meant tooverwrite the law, nor is it meantto undermine the law. Restorativejustice turns away from merelyusing punishment as a form ofdeterrence, and looks towards

amending theharm andhopefullytransformingthe individualsinvolvedthrough theuse of listening

and understanding. It is notmeant as a tool for coming toforgive the crime, but to under-stand and alleviate the harm and

the hurt that the event created.

With our government’s ever-growing favouritism towards a“tough on crime,” American-stylemovement towards criminaljustice, we as mediators should belooking to build and grow restora-tive justice initiatives,implementing them (as NovaScotia has) as more than just pre-trial diversion programs, but aspost-trial and pre and post-sen-tencing options for victims,offenders and the community.These programs can work. Theseprograms do work. Or maybethat’s just the hopeful idealist in

me. Currently, the family courtsand the civil courts in Ontariohave implemented mandatorymediation programs in an at-tempt to alleviate theever-growing burden of legaldockets faced by judges on adaily basis. Why not offer similarprograms in the criminal justicesystem?

Just a few days ago, I read anarticle entitled, “Why I confrontedthe man who raped me”. A 50year old doctor from Kent, UK wasinterviewed about her involve-ment in lengthy restorative justicesessions with her rapist. The rapist,a serial sex offender who has along list of charges and convic-tions for sex offences dating backto 1988, met with the doctor inprison for their restorative justicesessions where he is currentlyserving his sentences for thedoctor’s rape. As she and thearticle superbly explain it:

The mother-of-three explainedthat her motivation was tounderstand why he committed

Do we actually have to privatize

restorative justice as an industry to

start getting the recognition and

seriousness it deserves

Dr. Chung said:

“If victims would like restorative justice

they should all be offered it.”

ADR UPDATE / SUMMER 2011

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the crime, and why she waschosen as the victim. “The rapehappened – I could not changethat. The only things I couldchange were his behaviour inthe future and to get him tothink about his crime in adifferent way.” Restorativejustice is backed by advo-cates who say that it helpsmany victims cope with thetrauma of the crime and can

also reduce reoffending rates.Dr. Chung said: “If victimswould like restorative justicethey should all be offered it.It has certainly helped me tochannel the anger moreproductively. I no longer lieawake at night wonderingwhether he will come afterme or my family. I also believe itchanged the way the offenderlooked as his crime. I became a

real person to him” (Barrett).

Samantha Greenspan is currently an M.A.student at the University of Toronto in the Centreof Criminology and Sociolegal Studies. Sheobtained her ADR education at York University inthe Certificate and Advanced Cer tificateprograms in Conflict Resolution in 2007 and2010 consecutively, as well as a cer tificate fromthe Workplace Fairness Institute. Her area ofinterest at the Centre of Criminology is in victim/offender mediations in prisons. She has been avolunteer at CMSD since May 2008.samanthagreenspan@gmail.com

References:Braithwaite, John. “Setting Standards For Restorative Justice.” British Jour-nal of Criminology, Issue 42 (2002): 563-577. Accessed online March 7, 2011.(http://bjc.oxfordjournals.org/content/42/3/563.full.pdf+html)

Gerkin, Patrick M. “Participation in Victim-Offender Mediation: LessonsLearned from Observations.” Criminal Justice Review, Vol. 34, No. 2 (June

2009): 226-247. (http://cjr.sagepub.com/content/34/2/226.full.pdf+html)

Barrett, David. (2011, March 12). “Why I confronted the man who raped me.”The Telegraph, March 12, 2011. Accessed online March 13, 2011.

(http://www.telegraph.co.uk/news/uknews/law-and-order/8377869/Why-I-confronted-the-man-who-raped-me.html)

Colm Brannigan, C.Arb

Ely M. Braun, C.Med

Nicole Charron, C.Med

John L. Ferris, C.Med

Edwin Greenfield, C.Med

Lawrence Herman, C.Med

Lilian Ruth Klein, C.Med

Diane Laurin, C.Med

Diane Mainville, C.Med

Judy Neger, C.Med

E. Joy Noonan, C.Med

Patricia Reder, C.Med

Ernest G. Soulliere, C.Med

Sam Wales, C.Med

********

Jennifer Maria Bell, Q.Med

Sandeep (Bob) Bhalla, Q.Med

Robert Bird, Q.Med

ADRIO warmly congratulates the followingmembers on achieving the designation(s)of Chartered Mediator, Chartered Arbitratorand/or Qualified Mediator:

Cynthia Kroderis-Bowles, Q.Med

Mark B. Boyak, Q.Med

Richard Carpenter, Q.Med

Leanna C. Collins, Q.Med

Samy Czarny, Q.Med

Heydi Deen, Q.Med

Neil Donnelly, Q.Med

Marcel Faggioni, Q.Med

Samantha Greenspan, Q.Med

Mohammad Hafeez, Q.Med

Virginia Harwood, Q.Med

Kenneth Hinchliffe, Q.Med

Harlene James, Q.Med

Philip Kriszenfeld, Q.Med

Helen Lightstone, Q.Med

Douglas Macdonald, Q.Med

Roxanne Makela, Q.Med

Michael Maynard, Q.Med

Michael B. Miller, Q.Med

Martha Norman, Q.Med

Thomas O’Reilly, Q.Med

Ron G. Paulauskas, Q.Med

Eduard Sasonow, Q.Med

Judy Ann Scully, Q.Med

Valerie Y. Siebert, Q.Med

Maureen E. Smith, Q.Med

Peter E. Spratt, Q.Med

Victor C. Walcott, Q.Med

Jeff M. Wilson, Q.Med

Jonathan G. Elston, Q.Med

For information on any of thedesignations, please contact

mena@adrontario.ca.

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ADR UPDATE / SUMMER 2011

a. Membership Numbers– A Good News StoryAs of June, 2010, ADR Institute ofOntario (ADR Ontario) had 666members. At the end of Decem-ber 2010 we had 785 members. Asof June 2011, we have 817 mem-bers and we anticipate continuedgrowth to the end of 2011.

b. Designations– Since the Last AGMIf you have not applied for the C.Med, Q. Med, C. Arb or for thefamily designations Cert. F. Medand Cert. F. Arb you will want todo that as quickly as possible.

These designations are becomingincreasingly important to thosemaking referrals and to the pub-lic. These designations are, in fact,a well-recognized way for you tocommunicate your level of pro-fessionalism to users of ADRservices. Our designations arevery well respected nationallyand internationally.

As you know, the new C. Medcriteria will go into effect Septem-ber 1. You can apply under theexisting criteria until August 31.

National is presently reviewing C.Arb criteria and will be introduc-ing the Q. Arb designation thatwill parallel the Q. Med sometimesoon.

Please see Mena for an applica-tion and any information you mayrequire.

Please note, we will be holding aC. Med information night and aC. Arb information night shortly sostay tuned for that notice.

Drum RollWe would like to congratulate thefollowing practitioners on attain-ing the following designations.

President’s Report Prepared for June 16, 2011

ADR Institute of Ontario,Annual General Meeting

If you would please stand to berecognized and if our audiencewould please hold your applauseuntil we have read out all thenames:

(i) New C.Arb:Colm Brannigan

(ii) New C. Meds:Ely M. Braun, C.Med.Nicole Charron, C.Med.John L. Ferris, C.Med.Edwin Greenfield, C.Med.Lawrence Herman, C.Med.Lilian Ruth Klein, C.Med.Diane Mainville, C.Med.Judy Neger, C.Med.E. Joy Noonan, C.Med.Patricia Reder, C.Med.Ernest Soulliere, C.Med.Sam Wales, C.Med.

(iii) New Q.Meds:Jennifer BellSandeep (Bob) BhallaRobert BirdCynthia BowlesMark BoyakRichard CarpenterLeanna CollinsSamy CzarnyHeydi DeenNeil DonnellyMarcel FaggioniSamantha GreenspanMohammad HafeezVirginia HarwoodKennith HinchliffeHarlene JamesPhilip KriszenfeldHelen LightstoneDouglas MacdonaldRoxanne MakelaMichael MaynardMichael B. MillerMartha NormanTom O’ReillyRon PaulauskasEduard Sasonow

Judy Ann ScullyValerie SiebertMaureen SmithPeter SprattVictor WalcottJeff Wilson

c. AdvocacyHeather Swartz, Barbara Landaurepresented ADR Ontario alongwith OBA and OAFM and were,we are happy to announce,successful in advocating forimprovements in Family LawProcess that will provide separat-ing families an opportunity forup-front information and media-tion and, we hope, moreopportunities for mediator in-volvement all around.

d. Marketing(i) ADRIO logo

Just a reminder that all ADRIOmembers are allowed to makeuse of the ADR logo to indicateyou are a member of ADRIO onbusiness cards, letterhead, weband other marketing materials.

(ii) Powerpoint Presentation

There is also a powerpointpresentation that you can makeuse of in marketing yourself thatexplains what ADR is, what youdo as an ADR professional andwhat ADRIO is all about.

(iii) ADR Connect

Our members find that ADRConnect is an excellent way ofadvertising. With the databasereceiving about 1,396,000 hits in2009 1,740,000 hits in 2010 andalmost 900,000 hits to date in thefirst 6 months of 2011 it is verymuch in your interests to listyourself on ADR Connect.

You must also be on ADR Con-nect to join any roster or accept

ADR UPDATE / SUMMER 2011

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any assignments from ADRIO.

We continue to provide servicesfor disputes between Commu-nity Care Access Centres andtheir clients and will be calling apartial new roster of Independ-ent Complain Advisors thissummer.

We also continue to administercases for 407, Mutual InsuranceCompanies Ombudsman andAMEX and we are in discussionwith a number of entities formore roster work.

(iv) Rosters

We will continue to pursueopportunities that will bring workto our members and have anumber of interesting leads weare working on. We will keepyou posted as things develop.

(v) New Marketing Tool - Brochuresto provide to professionals

We have also developed abrochure that our members cangive to professionals who mightbe interested in referring a clientfor mediation or arbitration.These brochures will be mailedto you in due course and shouldbe a valuable aid to your mar-keting efforts.

e. SectionsI would like to urge all members toparticipate in section meetingswhich provide excellent informa-tion and excellent networkingopportunities. Our sections areextremely active and this year wewill be webcasting so that youcan participate from the comfortof your home or office. For those

of you who have never been to asection meeting, we are the onlyorganization I know of that pro-vides these sorts of informationsessions for free. Topics can be onanything related to Family, FamilyArbitration, Construction, Restora-tive Justice, OMMP, Workplace,Facilitation, Insurance, PublicConflict, IP and IT.

f. NewsletterWe would also like to thank ColmBrannigan and Anne Grant fortheir continuing work on theNewsletter Committee.

g. ScrutineersWe would like to thank Ken Selby,Sam Wales and David Alexanderfor their jobs as scrutineers for ourelection.

Our distinguished speakers for our recent PD Day:The Art and Science of ADR, June 16, 2011

From left to right, Peter Bruer, Roger Beaudry, Barbara Landau, Heather Swar tz, J. Brian Casey, The Honourable James B. Chadwick,Q.C., William G. Hor ton, Thomas G. Bastedo, Q.C.

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ADR UPDATE / SUMMER 2011

•Assist the public, business, and non-profit communities and gov-ernment bodies at all levels to consider, design, implement andadminister alternative (increasingly known as appropriate) alter-native dispute resolution strategies, programmes and processes;

•Assist all the foregoing to locate ADR professionals with the levelof skill and experience required to meet their needs;

•Provide training standards and accreditation procedures thatcontribute to the development of a community of ADR practi-tioners across Ontario that is competent, well educated andhighly professional in delivering ADR services to its users;

•Provide a regulatory infrastructure that includes a Code of Ethicsand a Code of Conduct for Mediators that set high standards ofpractice, as well as providing a complaint and discipline proc-ess for any dissatisfied user of ADR services;

•Provide ADR professionals throughout Ontario with educationaland networking opportunities;

•Speak on behalf of ADR professionals in response to current eventsand government initiatives.

The Mission of the ADR Institute of Ontario is to:

Staff Contacts

Executive Director:Mary Anne Harnick ......... telephone extension 104

Manager, Membership & Accreditations:Mena Sestito .................... telephone extension 101

Bookkeeper/Administrator:Rob Linkiewicz.................. telephone extension 102

Manager, Business Development:Janet McKay.................... telephone extension 105

Administrative Assistant:Brenda Lesperance ........ telephone extension 106

ADR Institute of Ontario, Inc. #405, 234 Eglinton Avenue East Toronto, Ontario M4P 1K5www.adrontario.ca Tel. 416-487-4447 Fax: 416-487-4429 admin@adrontario.ca