Michael Erdle led an interactive workshop on ethical issues in mediation/arbitration (med-arb) at the ADR Institute of Ontario 2018 Annual Meeting on June 7, 2018.   Issues included:

• mediator/arbitrator conflicts
• confidentiality
• arbitrator bias

For med-arb inquiries or to get a copy of Michael’s presentation, contact him at michael.erdle@practicalresolutions.ca.

Michael Erdle’s Slaw column this month looks at the use of dispute boards, project umpires and other dispute resolution models in large IT projects. This is part of a broader research project on dispute resolution boards for the International Technology Law Association (ITechLaw).

A dispute board – or individual umpire – is appointed at the beginning of a project and is available, on call, if a dispute arises. The process is extremely flexible. Some disputes may be resolved informally, through negotiation and mediation. If the parties can’t agree, hearings typically proceed quickly and and with minimal procedural formality. Each party has the opportunity to explain its position, present relevant information and documents, and respond to the other party’s position. The board or umpire may be mandated to provide a non-binding recommendation, or a binding decision (e.g. in the form of an arbitration award).

We want to find out:

1. What kinds of dispute resolution clauses are commonly used in large IT contracts?
2. Examples of IT projects that have used a DRB, single umpire, or similar project neutral (i.e. named for the duration of the project, in advance of a dispute arising).
3. Examples of med-arb or other hybrid processes.
4. What is the experience using the process when a dispute actually arises?
5. Does it work as intended? If not, why?
6. How was the dispute finally resolved?

Any assistance with this research would be most appreciated!

Please contact Michael Erdle – michael.erdle@practicalresolutions.ca – if you have any examples or case studies you can share.

One of the interesting new features of the ADRIC Arbitration Rules, which came into effect in December 2014, is the availability of an interim arbitrator to grant urgent relief.  Read my Slaw column to learn more about the new rules and how they worked in a recent case study.

Mediation and arbitration aren’t always confidential and private.  Michael Erdle’s January 2015 Slaw column looks at two recent cases where public policy collides with parties’ expectations and conduct.  If parties want to ensure confidentiality and privacy, they must take to ensure that this intention is realized.  This is  especially important in situations where one of them could later gain an advantage by making some details public.  The column discusses the Supreme Court of Canada’s unanimous decision in Union Carbide Inc. v. Bombardier Inc., 2014 SCC 35.  The court endorses a broad public policy in favour of maintaining the confidentiality of settlement discussions, including mediation.  And it looks at a decision of the Ontario Divisional Court, which dismissed journalist Jan Wong’s  application for judicial review of an arbitrator’s award that she repay a $209,912 settlement paid by the newspaper in a wrongful dismissal action.  The bottom line is that parties must give very careful thought to whether they want their dispute to be resolved privately, and whether they want it to remain confidential, come what may. They must think about whether there may be situations where they need to disclose some information about the mediation or arbitration in order to enforce a settlement or an award.

Michael Erdle has been selected for inclusion in the 2015 Edition of Best Lawyers in Canada © in the three practice areas: Alternative Dispute Resolution, Information Technology Law and Technology Law.

This is the fifth straight year that Michael has been named by Best Lawyers in the Technology categories.  It is the first time he has been named for Alternative Dispute Resolution.

Best Lawyers is the oldest and most highly-respected peer review guide to the legal profession worldwide. It is published annually, based on exhaustive peer-review surveys. Inclusion in Best Lawyers is considered a singular honour, because lawyers are not required or allowed to pay a fee to be listed.