Posts by Herb Silber

Herb Silber
Removal of an Arbitrator in British Columbia
Thursday, March 7th, 2013    Posted by Herb Silber (posts)
Herb Silber
Herb Silber
Herb Silber brings a strong combination of experience, expertise and empathy to his role as mediator.
Section 18(1) of the British Columbia Commercial Arbitration Act[1] (the “Act”) provides two grounds upon which a party may apply to a court to remove an arbitrator: arbitral error and undue delay. Arbitral error replaced the previous concept of misconduct and is defined in section 1 of the Act as “(a) corrupt or fraudulent conduct; (b) bias; (c) exceeding the arbitrator’s powers; (d) failure to observe the rules of natural justice”.

Section 18(2) enables the court to deprive an arbitrator of his or her fees and direct the arbitrator to pay some or all of the costs if removed under Section 18(1). The intent of this section is to avoid burdening the parties with the cost of the first hearing in addition to expenses incurred for a second proceeding before a replacement arbitrator.

Pursuant to section 18(3) of the Act, a court may appoint an arbitrator to replace one removed under section 18(1) and the effect of an appointment of an arbitrator under subsection (3) is as if the appointment had been made pursuant to the initial arbitration agreement

The Supreme Court of British Columbia in considering section 18 has held that the words “corrupt” and “fraudulent” were to be given their ordinary meaning.[2] “Corrupt conduct” is conduct so immoral that the injustice of the action would be evident such as activities undertaken with an evil purpose in mind or willfully immoral or dishonest which would impact the matter on which an arbitrator has been requested to adjudicate. “Fraudulent conduct” is conduct that is deceitful, dishonest, and deceptive. To succeed in an accusation of fraudulent conduct the litigant must show that the arbitrator knew or ought to have known that he or she was following a course of action that was deceitful, dishonest, and deceptive.
[1] Commercial Arbitration Act, R.S.B.C. 1996, c. 55
[2] Zaleschuk Pubs Ltd. v. Barop Construction Ltd., (1992) 68 B.C.L.R. (2d) 340 (B.C.S.C.)
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Herb Silber
Mandatory Mediation- Is this an Oxymoron?
Wednesday, October 10th, 2012    Posted by Herb Silber (posts)
Herb Silber
Herb Silber
Herb Silber brings a strong combination of experience, expertise and empathy to his role as mediator.

Many jurisdictions have mandatory mediation schemes of one type or another. Some are by a legislative scheme as is the case in British Columbia, [1] where any party can trigger the process to begin.  Other jurisdictions, particularly in various states in the U.S., have a judicial process that gives discretion to order mediation. While a “mandatory mediation” may sound counter intuitive given that our understanding is that at its core mediation is intended to be a consensual process, my experience is that it is surprising what the dynamic of having the parties commit time, personnel and resources can achieve. Often times this may be the first time the parties have been a room together, either ever or certainly since the dispute arose. Whether they think they do or not, they have a psychological investment in seeking success.  As such, while they may have met involuntarily, that does not necessarily mean that a voluntary agreement cannot be reached. It must be noted of course that no jurisdiction I am aware of requires the parties to come up with an agreement, only that they participate in arguably a good faith fashion to do so. At the very least the process can be useful to narrow the issues between the parties even if a full scale resolution is not achievable.

The one question sometimes arise is how to deal with a recalcitrant party who refuses to participate in the process. Various options may be available depending on the source of the mandatory mediation process. As an example, under the legislative model used in British Columbia, the defaulting party may ultimately find that their claim is dismissed or their defence is struck if they persistently refuse to engage in the mediation and the steps leading to it. Elsewhere where a judge is responsible for ordering the mediation, failure to comply with the Court’s Order could lead to a contempt citation. While these are draconian methods, the real objective of the mediator ought to be to ascertain why the party or parties, depending on the scheme employed, are objecting to the process and attempt to override through persuasion these concerns.

 

[1] Notice to Mediate

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Herb Silber
What is Proportionality under the New Rules of Court?
Thursday, August 11th, 2011    Posted by Herb Silber (posts)
Herb Silber
Herb Silber
Herb Silber brings a strong combination of experience, expertise and empathy to his role as mediator.

One of the significant departures between the current B.C. Supreme Rules introduced in 2010 and it predecessor can be found with the addition of Rule 1-3 (2) under the heading Object of Rules which addresses expressly what is meant by the need to secure a just speedy and inexpensive result on the merits:

“Proportionality-Securing the just, speedy and inexpensive determination of a proceeding on its merits includes so far as is practicable, conducting the proceeding in ways that at proportionate to:

(a) the amount involved in the proceeding
(b) the importance of the issues in the proceeding and
(c) the complexity of the proceeding.“

A recent Supreme Court of B.C. decision by Master Caldwell deals with the relative merits of items a and b and suggests that item b may be more significant than a. The decision, Isman v. City of New Westminster et al, 2011 SCBC 1066 involved an application by the Plaintiff for documents relating to a claim for malicious prosecution and wrongful arrest. The documents in question it was alleged may tend to prove the claim for malice and punitive damages insofar as they relate to prior litigation between the Plaintiff’s company and the City of New Westminster involving a contentious by-law regulating the conduct of the pawn broker business in New Westminster, which the Plaintiff’s company was successful in quashing. The Court held that, in effect, the importance of the issues between the parties insofar as it engaged the interaction between the government and a citizen and the role of the police in such an interaction trumped the allegation by Defence Counsel that the amount involved was relatively minor. The gravamen of that aspect of the Judgment can be found at paragraphs 12 to 14 of the Judgment reproduced as follows:

[12] Defence counsel also submitted that the concept of proportionality as contained in the new rules mitigated against the potentially extensive and expensive search for and production of such documents. He suggested that the arrest and incarceration of the plaintiff were of such a brief nature (a matter of hours) that damages were minimal or non-existent.

[13] I am unconvinced by any of the defendants’ arguments.

[14] In my view, the defendants’ argument regarding proportionality provides the spotlight under which all of their arguments should be examined. Proportionality does not only relate to monetary quantification; it also relates to the importance of the issue in question. This case involves potentially very serious questions involving the interaction between a government and one of its citizens and the role of the police authorities in that interaction. In a free and democratic society, it is hard to imagine an issue of greater import.

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Herb Silber
Role of an Effective Mediator – Separating Positions from Interests
Monday, July 11th, 2011    Posted by Herb Silber (posts)
Herb Silber
Herb Silber
Herb Silber brings a strong combination of experience, expertise and empathy to his role as mediator.

Herb Silber is a graduate of the Harvard School of Negotiation Mediation Program

An effective Mediator knows that often the parties’ bargaining positions are not reflective of what truly stands behind their positions. While on the surface it may seem that the issue is simply dollars and cents, the fact is that their positions are often driven by other motives. These motives can be such things as anger, lack of recognition, desire to punish, or hopes for concessions.  The Mediator needs to be able to assess which of these motives are behind the positions taken by the parties so that he cannot try to diffuse these factors. It often will prove very difficult to settle a dispute without the parties being able to modify the form or content of their original demands. An effective Mediator knows this and will use his or her skill to assist the parties in distinguishing their true underlying needs-things that the parties will need to address to have any chance in settling the dispute-from their original desires or motives, and modify their bargaining positions accordingly.  This is the task of helping the parties move from the positions they are taking to identifying the interests that underlie those positions and effectively dealing with them to achieve a settlement.

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Herb Silber
The Mediator as Transmitter and Translator of Information
Thursday, March 10th, 2011    Posted by Herb Silber (posts)
Herb Silber
Herb Silber
Herb Silber brings a strong combination of experience, expertise and empathy to his role as mediator.

Herb Silber is a graduate of the Harvard School of Negotiation Mediation Program

As mentioned in my earlier post The Mediator as a Facilitator, one of the challenges in mediation is how to deal with the breakdown in communication and trust between the parties. As is often the case,  they may not have spoken since the dispute arose.

The breakdown of communication is likely good evidence that the parties are not understanding each other’s positions.  Mediation is an exercise in dealing with interests, of course, not positions.  Regardless, the Mediator must quickly assess if the parties are not just talking at each other, but also truly understanding what the other is saying.  Reasons for a lack of understanding include a lack of awareness of certain facts or differing perceptions of the meaning of those facts.

The mediator, therefore. can provide a valuable service to the parties by “drilling down” on the facts and understandings each party may have and not only transmitting information that may not be known, or whose relevance has not been given sufficient importance, but also translating that information in a way that may give each party a new perspective on the dispute. Both functions are important and may pay big dividends in achieving a successful outcome.

 


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