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 "Mediation and Other Stuff"

Colm Brannigan
Winter 2011

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Welcome to Mediation and Other Stuff.  With this issue I am moving from an irregular now and then newsletter schedule, to a now and then, more or less regular monthly one.  A lot has happened over the summer since my last newsletter. 


I am now associated with MDR Associates Conflict Resolution Inc. in Ottawa with Richard Moore, Blaine Donais, Philippe Patry and Ashley Moore.  Together we will be able to provide a greater range of ADR Services including Training to our clients.


In the condominium field the Ontario government is now in the first phase of the public consultation part of the Condo Reform process.  I have been fortunate to be part of Canadian Condominium Institute (CCI)/Association of Condominium Managers of Ontario (ACMO) sub-committee led by Richard Elia  on how the dispute resolution aspects of reform might be approached.


As part of the development of my condominium ADR practice, I have joined with Murray Miskin and others in the Condominium ADR Group  a collaborative association of mediators and arbitrators with expertise in condominium mediation and arbitration.


I will also be leading a presentation, "Lifting the Curtain on Mediation"  at the 16th Annual CCI-T/ACMO Condominium Conference on Saturday, November 3, 2012 in Toronto.


Finally, I am pleased to announce that I have been appointed through the ADR Institute of Ontario, Inc. to the Toronto Construction Association's Mediation Roster.


This month's newsletter is about on Online Dispute Resolution (ODR) which is a lot more than just applying technology to ADR. ODR has been in the shadows for the last ten years but is quickly taking its place as another useful process and tool in the dispute resolution toolbox. In the near future I hope to be able to offer ODR as part of my dispute resolution services through Modria, the most up to date and powerful ODR platform available today.


The case of the month is an interesting US case involving confidentiality and mediation coincidently in a HOA (Condo) case. Confidentiality and privilege seem to be ongoing issues in this field and there is a lack of Canadian case-law and guidance on the topic. 





Online Dispute Resolution


We have become so familiar with information communication technologies (ICT) that we sometimes forget that they have really only become mainstream in the last 10 years. At the end of 2002, more than 650 million people worldwide had access to the Internet, rising to 2.3 billion people by the end of 2011.   Despite this immense potential market we do not use ICT to any significant way in dispute resolution. This is about to change and as providers of ADR services, we better be prepared for this. 


In his brilliant work,  "The End of Lawyers?", Richard Susskind identifies ODR as a disruptive technology for lawyers.  It will have the same impact on mediators and arbitrators. Many practitioners and clients remain skeptical of, if not strongly opposed to, ODR.  But the time has come and gone for debating the point.  A whole generation who are used to "living" on-line will soon demand to be able to resolve their disputes on-line as well.


What we need to do, is not view this as an either "/or", but to look carefully at the way in which ODR can enhance existing dispute resolution systems.  We must also remember that in some limited cases, such as geographic distance, ODR may be the only feasible way of resolving disputes for some clients. 


An early working definition of ODR was dispute resolution which "takes advantage of the Internet, a resource that extends what we can do, where we can do and when we can do it".  But ODR is actually far more than this and we need to explore and critically examine ODR and its potential application to a wide range of disputes.


The power of ODR to store and disseminate information, organize scheduling, and narrow or filter multiple issues with multiple parties, is highly significant. With the potential to ensure more equitable and just processes, ODR will have an immeasurable impact on the facilitation and the organization of communities of interests much as Twitter has become indispensable to politicians and activists alike.


In working with an ODR platform we must take care that the technology itself does make participation difficult.  Also, ODR must not replicate barriers such as favoring stronger parties, or those who are more familiar with the technology. This was a problem with the early attempts at introducing ODR. But it is not that simple, ODR can empower weaker parties by leveling the playing field, taking away obvious gender issues, and by providing a means to avoid face-to-face interaction, thereby reducing power imbalances and physical dangers. ODR can provide a "safe" place to mediate.


It can level the playing field in disputes by facilitating disputant's access to information on a scale that could not be imagined even a few years ago. By providing an environment where communication power can be balanced, disputants who might be perceived as "weak" at the bargaining table are no longer in this position. Individuals with real or perceived disabilities can resolve disputes without having to reveal these difficulties. Rather than avoid disputes because of costs or distance being out of proportion to the issues at stake, individual disputants can seek resolution of disputes with large institutional and corporate entities, which was not a possibility without ODR.


Given our experience with Facebook and other forms of social media there is no reason to believe that the empowering aspects of technology will not support various models of mediation and arbitration. We should also remember that ODR is not necessarily an exclusively on-line process. By combining intense face-to-face sessions with the "cooler" on-line component, we may be able to enhance both traditional methods of dispute resolution and the ODR process.  An obvious way of dealing with many of the concerns about ODR is to develop standards for the technology, the process and the neutrals.  The European Union has recently issued a directive on standards for ODR and there is also a UNCITRAL working group on the topic.  The ADR Institute of Ontario has been invited to comment on the UNCITRAL perspective.


A key question for ADR practitioners is who will be the neutrals in this brave new world? Mediators and arbitrators need to be aware of the fact that no matter how expert they are, there are far more tools available today than a year ago and with these new tools comes the need for new skills. As in off-line ADR, the education of neutrals is especially important, especially in communities where cultural and language barriers abound. Perhaps the greatest obstacle to the development of ODR skills is our unwillingness to spend the time to keep current about the changes in both technology and process.


There are potential issues with ODR processes. In face-to-face interaction, people are accustomed to attending to particular symbols and politeness rituals that signal respect and dignity, but is it possible to communicate these electronically? If disputants do not see the on-line process as fair, this may lead to a decision not to pursue in future dealings with it. But advances in video conferencing have done much to enhance ODR as a medium for dealing with disputes. 


The use of ADR has proliferated in family conflict especially in North America. While at first glance, the dynamics of family dispute resolution would seem to make it unsuitable for on-line resolution, many of the benefits of on-line communications may indeed make this an area of rapid growth in ODR. Given the unprecedented mobility of individuals in North America and Europe, and the ongoing nature of family disagreements, ODR may provide the tools necessary to fine tune agreements as circumstances change without the necessity of continuing face-to-face mediation. In addition, mediating face-to-face is not always possible or even desirable where there are domestic violence or significant distance issues.  The government of British Columbia is leading the way in using ODR in family mediation and this will likely extend into what we now see as small claims court disputes.


If ODR is to be developed as one of the preferred dispute resolution systems, we need to work together to ensure the maximum benefit to the community at large. The positive potential of ODR is virtually unlimited.  We as practitioners must take care that technology does not dominate and subsume the human element that is at the core of ADR values and processes. At the same time use of ODR can significantly reduce costs and make ADR into Affordable Dispute Resolution for many of our clients.


I am confident that we can overcome the process and technology issues. ODR provides us with an opportunity to move ADR back to being a real alternative rather than just another part of the litigation process, which is where it now seems to be.




                                   CASE OF THE MONTH



In Sun Harbor Homeowners' Ass'n, Inc. v. Vincent Bonura a recent case of the Florida Court of Appeal, it was held that the mention or the questioning of a witness about whether mediation had taken place is not a waiver of an objection to the introduction of the communications made during the mediation.


Sun Harbor Homeowner's Association (HOA) filed a lawsuit in state court to enforce a covenant against the unit owner for violation of its "no dogs" policy.


This is a common problem in condominium communities as part of the trilogy of "People, Pets and Parking" disputes. The unit owner counterclaimed, arguing that Sun Harbor's denial of an accommodation for his fiancÚ's therapeutic dog should be overturned under Human Rights legislation.


The trial court agreed with the unit owner and allowed evidence of conversations that took place during mediation  between the parties.  The HOA had objected to the admissibility of this evidence but the court reasoned that because the HOA had asked a witness whether mediation took place it had waived its right to object to the introduction of mediation communications.


The HOA appealed to the District Court of Appeal of Florida. The appeal was allowed deciding that under Florida law, the "mere mention, or questioning of a witness, regarding mediation occurring between parties did not in itself constitute a waiver of a party's right to object to the introduction of mediation communications".


The trial court's decision was clearly wrong. Or was it? Would the result be the same under Ontario law? Should counsel be wary of even mentioning that mediation took place?  Should we change our mediation agreements to specifically say that a party mentioning that mediation took place does not mean the other party can introduce evidence of what actually happened at the mediation? Probably not, but it is interesting that in Florida, a state with a long history of mediation in the civil justice system that such a decision was made in the first place. 


The case is available on-line at:





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Colm Brannigan
Mediator and Arbitrator

Colm May 2011



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