About me
My Approach
Conflict is a fact of life. It can be destructive or creative. Either way, it’s how we deal with it that counts.
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If you’re on my website, you’re probably involved in a dispute you haven’t been able to resolve on your own or on behalf of your client. You may also be hoping to avoid, in whole or part, the traditional court process.
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Mediation and arbitration or a combination of the two are steps along the continuum of approaches to dispute resolution.
Mediation
Mediation: is a facilitated process where a neutral third party (me) helps the parties themselves find a resolution to some or all of their dispute. At its most valuable I see it as essentially a form of negotiation where the neutral helps the parties’ segregate facts, interests, and emotions, identify and evaluate potential solutions, and (hopefully) agree on a path forward. Self-determination is central to the process. The neutral has no authority to impose an outcome; the parties alone decide how they will move ahead.
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Court processes are by definition adversarial. The process itself can – and often does – damage or destroy relationships. Mediation can be especially helpful if the parties have a relationship that needs to be preserved or perhaps strengthened. Regardless of the relationship it can also be invaluable in identifying and addressing the underlying issues that animate or complicate the dispute.
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Flexibility is one of mediation’s greatest advantages. There are several recognized types of mediation including, evaluative, facilitative, and transformative. Although mediations tend to follow certain patterns, there is no requirement that they do so, and any given mediation can shift among all types. Provided the parties come to the process in good faith, it can be structured in whatever way best suits the parties and the dispute.
Arbitration
Arbitration: is a more formal process where the parties give the neutral – again, me – the power to impose a final resolution over some or all of their dispute. Arbitration is contractual; it can only take place where the parties have agreed to settle their dispute through arbitration. To my mind, it’s greatest advantages are (1) it's completely customizable to the dispute and (2) speed.
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Courts have very limited flexibility to ignore steps built into their Rules. Courts are cumbersome, often unavoidably heavy-handed, and in almost all cases, slow, very slow. Lawyers tend to be creatures of habit. When it comes to litigation that means we default to the local courts and their associated Rules. However, we all know not all the steps in the Rules make sense for all cases. Indeed, except for rare cases, it almost never makes sense to take each step every time. That’s the advantage of arbitration. Subject to my obligation as arbitrator to ensure all parties receive a fair hearing, the parties – working with me – are free to design as formal or informal, simple or complex a process as they wish. Arbitration does not have to be – and in my view should not be – “litigation sitting down.” An arbitration can and should be customized to fit the circumstances of the dispute; keep the steps that make sense, ignore those that don’t.
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This flexibility makes a speedy resolution possible. Aside from the frustration and injustice that delay generates, time is unquestionably money when it comes to litigation. The longer a case is alive, the more it will cost. Every step in the process demands an investment of time and effort by both lawyers and clients to prepare and undertake. The delay between steps means at every step the lawyer has no choice but to review and to a large degree, relearn, the file. By compressing the time frame, even after my fees the process will almost certainly be considerably less expensive than going to court.
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In the interest of full disclosure, even though the parties control the process, I will be pushy about keeping the process as simple as possible and the file moving as efficiently as possible. I will add that I am perfectly comfortable proceeding on an entirely ad hoc basis or using any of the institutional rules that may be available, as the parties prefer.
Med-Arb/Arb-Med
are ways to combine the two processes.
Med-Arb: involves the neutral starting off as a mediator but, if the mediation ends in impasse, the matter will move to arbitration. There are definite pros and cons to this approach. The threat of arbitration creates added incentive to reach a negotiated settlement and if the matter does move to arbitration, it should be easier to agree on the evidence as it should have been disclosed during the mediation stage. On the other hand, the threat of arbitration may make parties less candid in sharing information that would help settle in the mediation and, human nature being what it is, it may be, or be perceived to be, difficult for the neutral to “forget” any confidential information learned during the mediation stage. Provided the parties and the neutral are alive to the potential pitfalls, Med-Arb can work very well in the right situation.
Arb-Med: as the name suggests, this reverses the process. The arbitration is conducted first and a decision written by the neutral but withheld from the parties until the mediation is complete. The neutral can’t change the decision. Its biggest advantage is the concerns about sharing confidential information and the neutral’s ability to “forget” it are no longer in play. An obvious disadvantage is the added time and expense to complete the process. Again, however, in the right situation this too can work very well.
AREAS of DEMONSTRATED EXPERTISE & EXPERIENCE
I’ve been fortunate to have a wide-ranging career that has given me the opportunity to practice in many different areas of law and business. The following are areas with which I am well familiar and in which I can operate comfortably:
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Administrative law
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Agricultural law
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Alternative Dispute Resolution
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Arbitration law & procedure
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Bankruptcy & insolvency litigation
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Civil litigation – trial, appellate & administrative
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Commercial real estate leasing
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Commodities
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Competition/Anti-trust
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Complex commercial transactions
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Complex negotiation
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Complex litigation
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Contract development & negotiation
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Construction litigation, incl. CCDC
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Corporate governance
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Corporate policy development
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Criminal litigation
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Cyber breach management
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Data privacy and cyber-security
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Debt financing
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Employment law
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Employment policy development
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Estate litigation
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Evidence & civil procedure
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Government policy development
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Intellectual property
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International trade, litigation & regulation
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IT infrastructure & outsourcing
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Joint ventures
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Labour relations – collective bargaining, grievances, tribunals, strikes
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Legislative process
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Licensing
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Mediation
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Maritime law
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Municipal assessment & development
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P-3’s
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Pension, benefits, & executive compensation
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Privacy
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Product liability
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Public policy & regulation
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Regulatory matters
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Strategic planning
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Tax litigation
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Transportation law (rail & air)
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Website policy development
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Workplace investigations