The Mediation Mindset

Victoria Pynchon's always-insightful Settle it Now Mediation Blog takes a close look today at the alternate mindset necessary for resolution of conflict through mediation, as opposed to litigation.

She argues that the litigation process necessarily adopts our collective inclination toward "good vs evil" narratives, while mediation, by contrast, emphasizes "interest-based, consensus building, collaborative, problem solving [and] negotiated resolution."

To succeed in mediation, she suggests, the litigation narrative must be dislodged.

She excerpts from Client Counseling, Mediation and Alternative Narratives of Dispute Resolution (Spring 2004) 10 Clinical L. Rev 833, by Law Professor Robert Rubinson, to underline this central point:

The meta-narrative of litigation maps these "strivings" and "vanquishings" onto the struggle of one party against another and enlists the aid of the court to vindicate justice on behalf of the wronged party. In contrast, the meta-narrative of mediation seeks to map these "strivings" and "vanquishings" onto a collaborative struggle to resolve conflict. This narrative casts all participants as players in a process - collaboration - that is focused on reaching the common goal of successfully resolving or transforming a dispute. This story has moral entailments because collaboration is accepted as a social and moral good. Unlike litigation, however, this story does not generate a binary moral universe that divides the good from the bad, but, rather, a universe that values collaborative striving to achieve common ground and resolution.

Needless to say, lawyers attending with clients at mediation play a major role in setting and maintaining the tone of the dialogue that ensues. While I'd argue that there is no one-size-fits-all-cases "mediation mindset," and there are indeed occasions where a "big stick" is warranted - even at mediation - Ms. Pynchon's analysis and comments are sound and largely on the mark.

Mediation works best when legal warriors lay down their swords (if only for the day).

- Garry J. Wise, Toronto

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Workplace Harassment and Bill 168 - A New Remedy for an Old Problem

Workplace bullying is a serious problem for thousands of Canadians at work. It can degrade one’s self worth and create serious health problems for workers and their families.

There has often been very little that could be done to stop the workplace bully in his or her tracks. But, in Ontario, there is now hope around the corner.

This month, Ontario’s Standing Committee on Social Policy will wrap up public hearings regarding Ontario's Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace. The Bill, which will place heavier obligations on employers to prevent and manage workplace violence and harassment, has already been given second reading in the Legislature, and will likely become law sometime next year.

The new law defines "workplace harassment" and "workplace violence" in the following manner:

"Workplace harassment" means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.

"Workplace violence" means:

a. the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker,

b. an attempt to exercise physical force against a worker in a workplace that could cause physical injury to the worker.

This type of legislative initiative should be welcomed. Many employees live with the often horrific reality that the workplace can be a war zone from which there is no shelter.

Researchers Charlotte Rayner, Helge Hoel and Cary L. Cooper have contributed to our understanding of what may constitute workplace bullying.

In their book, Workplace Bullying: What We Know, Who is to Blame, and What We Can Do, they suggest that bullying may include:

• Threat to professional status (e.g., damaging the person's reputation, humiliating the person in public or accusing him or her of lack of effort).
• Threat to personal standing (e.g., calling the person names; insulting, teasing or intimidating him or her; or devaluing the person based on age).
• Isolation (e.g., preventing access to opportunities, deliberately withholding important information or isolating the person physically or socially).
• Overwork (e.g., imposing undue pressure to produce work, setting impossible deadlines or making consistent and unnecessary disruptions).
• Destabilization (e.g., failing to give credit where it is due, assigning meaningless tasks, removing responsibility or setting the person up for failure).

Certainly the costs of workplace violence and harassment can be profound for victims. Bill 168 is a welcome step in the right direction.

......

Tort Remedies for Harassment

The Ontario Superior Court's December 2009 ruling in Piresferreira v. Ayotte and Bell Mobility Inc., [2008] O.J. No. 518, provides a dramatic example of the civil remedies available in Ontario in extreme cases of harassment and bullying.

In that case, an employee was abused by a manager who frequently yelled and swore at her, and berated her in front of other employees. The culminating incident occurred when the manager became frustrated with the employee and pushed her aside, and the employee (who was 60 years old) lost her balance and fell back against a filing cabinet. Soon thereafter, the employee was presented with a performance improvement plan prepared by the manager. The employee was diagnosed with post-traumatic stress disorder, and left her employment permanently.

The court awarded the employee $45,000 in damages for assault, battery, intentional and negligent infliction of emotional distress, mental suffering and psycho-traumatic disability; $450,832 for loss of past and future income; and $5,123 for special damages.

Garry has also addressed this ruling in a previous post.

- Stephen Ellis, Toronto

Stephen Ellis is a Toronto lawyer practicing in association with Wise Law Office, Toronto

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Minnesota Chiropractor Attacks Canadian Health Care

Meet Larry the Plumber.

- Garry J. Wise, Toronto

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The "Cell Phone Energy Diet"

I mucho like this:

About the size of your average flashlight, the PEG takes the kinetic energy humans develop through physical activity and uses it to recharge small, electronic devices such as your phone, camera, or iPod.

...Place it in your bag or on your hip, attach it to the device that you need to charge using a standard USB cord, and the PEG does the rest. With each step you take, magnets inside the generator bounce back and forth off the springs inside it, creating electricity.

- Garry J. Wise, Toronto

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Parental Access Visits by Skype?

Access visitation with far-away children via Skpe - is it good enough, or not?

National Post reports on conflicting decisions in child mobility applications by Canada's family courts on yet another, new issue of the digital age:

Daily contact by video conference over the Internet is not sufficient access between a father and his children, a judge in British Columbia has ruled in turning down a mother's request to move to Australia.

The decision issued by B.C. Supreme Court Justice Hope Hyslop last week is the latest in an increasing number of family law disputes where one of the parents has proposed using online software such as Skype when seeking to move with their children a great distance from their former spouse. In at least four other cases in the past year, judges in B.C., Alberta and Ontario have cited Skype as one of the reasons that a parent was permitted to separate a child from the other parent.

"Electronic communication is not as desirable as in-person access, but it does allow for the child to keep in touch with her dad every day if she so wishes," said B.C. Supreme Court Justice Deborah Satanove in a recent decision.

- Garry J. Wise, Toronto

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The Future of Wallace Damages in Ontario Employment Law

Law Times has a good analysis today on the future of Wallace damages in Ontario wrongful dismissal proceedings. These damages have typically been granted where an employer has acted in bad faith in the termination of employment.

With the Ontario Court of Appeal's June 25, 2009 ruling in Slepenkova v. Ivanov, it is now clear that the nearly-universal pronouncements by management lawyers as to the death of this head of damages after Honda and Keays may have been a bit premature.

In Slepenkova, the Ontario appellate court upheld a two-month notice extension for an employer's bad faith termination, even though no evidence was led at trial as to the specific damages the employee directly incurred as a result of the bad faith. This appeared to place the trial Judge's decision at odds with the new Wallace test set out in Honda.

One employers' counsel, quoted in the article, sums up management's employment law litigation equation as follows:

“Employers always have to ask themselves whether it’s worth going to trial in employment cases...And you can never tell what the judge is going to do because employment cases are always crapshoots where sympathetic judges have enough leeway to fit the facts around the law.

See the full Law Times article: Wallace Damages are not Dead

Prior to Honda, the Wallace damages claim had become a virtually "boilerplate" feature in employment law litigation, rearing itself in a very significant percentage of employees' wrongful dismissal claims.

In our view, Slepenkova simply demonstrates that the Honda decision merely moderated, rather than eliminated Wallace claims.

Wallace damages are now likely reserved for the out-of-the ordinary cases where an employer's excessive, inflammatory or detrimental actions at the time of termination cause observable distress or damage to an employee that is beyond the norm.

Perhaps they always were.

Wallace claims may no longer be "boilerplate," but they remain as a significant response where an employee has suffered demonstrated harm due to excessiveness or callousness at the time employment is actually being terminated.

- Garry J. Wise, Toronto

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The Trial of KSM

With the Obama administration's decision today to try Khalid Sheikh Mohammed and other "enemy combatants" in public trials to be held at New York City, the torture debate is about to find its way into open court in America.

If I was Dick Cheney, I'd be very, very worried.

(Another brilliant chess move by Obama?)

- Garry J. Wise, Toronto

Update - November 16, 2009

A similar take at C&L, in response to Liz Cheney's stated objections on the Sunday talk show circuit to the New York criminal proceedings:

What she's worried about are her father's pesky war crimes coming to light.

- GJW

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Digital Alibi

Introducing the Facebook defence:

Bradford and witnesses insisted he was innocent. They said he was at his father's Harlem apartment when the crime occurred.

..Prosecutors dropped the charges after Facebook verified the words had been typed from a computer at his father's building.

- Garry J. Wise, Toronto

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"'How Can You Represent a Mass Murderer?"

Colonel John Gallagher (Ret.), a civilian lawyer who represents Malik Nidal Hasan, the accused shooter in last week's brazen attack at Fort Hood Army Base in Texas, explains due process to CNN's Wolf Blitzer:

- Garry J. Wise, Toronto

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Quotable

Vanity Fair's James Wolcott:

"Don't let the soaring market fool you," cautioned [Neil] Cavuto at the start of his 6 pm show.

....To address this crisis of rising portfolio value, Cavuto introduced his first guest, that financial oracle, that investment wizard, that translucent orb that burns by night: John Bolton, Sheriff of Nottingham.

It takes more than a market rally to pull the wool over Bolton's mustache. He perceived the rise as a function of a falling dollar, which is a thumbs down on America's declining status and crumbling balance sheet. Following Bolton on Cavuto's show was fellow C-lister Dick Morris, who never gets anything right, so who cares what the thinks about anything?

See, what peeved Cavuto and Fox Biz was that Wall Street refused to follow the doctrinaire script. After the House narrowly passed health reform over the weekend, the market was supposed to go down on Monday as a damning verdict on the socialist overreach of the Obama administration. Here are Glenn Beck, Stewart Varney, that twerp on Fox Biz's "Happy Hour" who keeps crying fascist!, and the jingoistic Capitalist Pig, and the other hobgoblinizers spouting and shouting themselves hoarse that Obama (and Pelosi) are bad for business, profits, and individual investors, and in 2009 the markets have had the indecent gall to go up, daring to contradict them.

- Garry J. Wise, Toronto

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Video: The Great American Health Care "Debate"

A taste of the "debate," now before the House:

(Via Digby)

- Garry J. Wise, Toronto

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Celebrity Burglaries

Soon, they will be lining up to secure the movie rights to this tawdry story.

And this one, too.

- Garry J. Wise, Toronto

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The HST Tax on Access to Justice

Legal services currently are exempt from Ontario's 8% provincial sales tax.

With the Province now poised to impose a whopping 13% Harmonized Sales Tax (HST) that is targeted to apply to legal fees, Slaw's Edward Prutschi considers the negative implications of this tax on access to justice in the Ontario, and eloquently asks why organizations representing the legal profession remain largely silent:

Starting in July 2010 when Ontario’s GST and PST are replaced by the new Harmonized Sales Tax, virtually everything, including legal bills, will be subject to the new 13% HST... To put it simply, legal bills are going up 8% across the board in every area of law purely to cover the tax consequences.

The implications of this tax grab are dire and far-reaching. Access to Justice is directly threatened by this substantial jump in the cost of legal services. Our courts are already struggling with the costs and burdens associated with an increasing number of self-represented litigants who have been driven to stand alone in court by the crushing burden of high legal fees and expensive court proceedings. The HST will have a direct negative impact on the capacity of individuals to have their cases heard in our Province’s courtrooms. The consequences for civil court cases, spousal support claims and child custody issues are serious indeed, but the devastating impact of this tax will be felt most acutely in my area of practice – criminal law.

...So, while lobbyists put the spit shine on their submissions to government as to why a new car, new home, or mutual fund, ought not to be subject to additional taxation, how is it that we lawyers appear to be entirely silent on a direct attack against the public’s ability to access the justice system in which we toil? Time is running out. The tax man cometh.

Ontario's governments of all stripes have always been good at talking the talk when it comes to access to justice. The HST tax, however, will add hundreds - or even thousands - of dollars to the costs of legal services borne by every Ontarian who is involved in a contested family law or civil litigation proceeding.

It is high time for the Ontario government to walk the access to justice walk.

The public cannot simply cannot afford any new tax on legal services. Period.

Legal services must be exempted from the HST. And as Mr. Prutschi suggests, our Law Society and Bar Associations need to get with that programme - fast.

- Garry J. Wise, Toronto

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McGuinty’s Early Christmas Gift to Auto Insurance Companies

After Finance Minister Dwight Duncan stood up in the Ontario Legislature last Monday and publicly wrung his hands at the mountain of motor vehicle accident claims in the province, he did what any clear thinking and sincere politician in his shoes would do to deal with rising auto insurance premiums – give more money to the insurance companies.

The proposed changes to the Province's automobile insurance regulations, due to come into effect next summer, would see the maximum allowable medical and rehabilitation coverage drop from $100,000 (in non-catastrophic cases) to $50,000.

The changes would also remove an injured person's right to obtain an assessment from their own doctor if they disagree with the findings of the insurance company's health provider.

But he didn’t announce that for the same money the average consumer would get less in accident benefits. He talked about “choice.” And everybody knows it’s good to have choices.

He added that drivers could still purchase $100,000 or even $1-million in non-catastrophic medical and rehabilitation benefits if they chose after the proposed changes come into effect. Motorists will also get options on the level of insurance coverage they want for attendant care, housekeeping and death and funeral expenses.

The recent proposals for auto insurance reform are simply the latest salvo in a decades-long erosion of the rights of motor vehicle accident victims.

In 1990 the government introduced legislation that only permitted compensation for pain and suffering in cases where it could be shown that injuries sustained had become “serious and permanent.” In 1996, the government of the day thought that insurance companies should be awarded a $15,000.00 deductible if pain and suffering claims met the “serious and permanent” threshold. That deductible was increased to $30,000.00 in 2003.

These unconscionable changes to the auto insurance landscape have given Ontario the reputation of being the toughest jurisdiction in North America for accident victims.

What is clear is that motor vehicle accident victims, their advocates and supporters have nowhere near the power or influence the insurance industry has. And as long as that imbalance remains, the insurers can always count on government to do their bidding.

- Stephen Ellis, Toronto

Stephen Ellis is a Toronto, Ontario lawyer

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Legally Tweeting - November 4, 2009 Edition

We've been on a bit of a blogging hiatus over the last week or so (while other duties called), but managed to keep up, nonetheless, with our legal tweets in the interim.

Here, then, are highlights of our recently tweeted legal headlines:

• Tribunal awards $35000 to fired pregnant woman - Canada NewsWire http://bit.ly/1dBp3O
• Canada to extend Employment Insurance benefits to self-employed - http://tiny.cc/WiseLaw827
• Ontario court denies insurer's bid to see claimant's Facebook account - Investment Executive http://bit.ly/2l01Cx
  
• Lawyers Warn: Bosses Who 'Friend' Are Begging to Be Sued http://bit.ly/ui4wi
• Abella's message: Stand up for justice - Calgary Herald http://bit.ly/2Vvisc
• Employers advised to reinforce cellphone road rule - Toronto Star http://bit.ly/okkQU
• Report: Racy sex tape ends Prejean’s lawsuit against beauty pageant http://bit.ly/3J37KP
• Appeals Court Lawyer 'Traffics' in Term Papers http://bit.ly/CuxhC
• Italian court convicts 23 Americans of kidnapping in CIA rendition case http://bit.ly/1swr9c
• Giant Wal-Mart wage and hour class action settles http://bit.ly/1i0fZW
• Maine Voters Repeal Law Allowing Gay Marriage http://bit.ly/2ISfMy
• EU court bans crucifix in Italian schools - http://bit.ly/3CCLE0;
  Italian government vows to fight EU Court ban on classroom crucifixes http://www.cnn.com/2009/WOR...
• Google Wave Simplified: How it Basically Works (with video) http://tiny.cc/WiseLaw897
• Twitter's new lists: What they mean for marketers and other attention "whores" - http://davetroy.com/?p=644
• Two new judges, Hoffman and Tobin, sworn in - Windsor Star http://bit.ly/FK6y8
• New chief justice for Alberta court http://bit.ly/8VTER
• Justice who refused interracial marriage resigns http://bit.ly/3jiRbP
• U.S. hospital fined for 5th wrong-site surgery since '07 http://bit.ly/3gsPwx
• Competition Bureau wants changes in real estate rules http://bit.ly/2AnteZ
• U.S. court denies Maher Arar's appeal http://bit.ly/3QCUna
• UK Supreme Court case will test London’s reputation as the divorce capital of the world. http://tiny.cc/WiseLaw483
• Stop behaving badly, boorish lawyers told - Toronto Star http://bit.ly/2VxNFM
• Pennsylvania court overturns thousands of juvenile sentences in judge kickback scandal http://bit.ly/1C31CB
• Cheney ‘cannot recall’ almost anything about Plame outing http://bit.ly/qc471
• U.K.: “Council bans parents from play areas” http://bit.ly/1i12e3
• Why Aren’t Bad Prosecutors Held Accountable? http://bit.ly/p2EAV
• Church of Scientology guilty of fraud in France http://bit.ly/o4EHH
• Rookie Dallas cop tickets woman for driving while not speaking English -- UPDATED http://bit.ly/3xFAxK
• LawPundit's List of Twitter Addresses of Legal Blogs (Blawgs) http://tiny.cc/WiseLaw964
• 'Lawyer' is a witch: Police - Toronto Sun http://bit.ly/AqLJv

As always, follow us on Twitter at http://twitter.com/wiselaw for up-to-the-minute legal news.

- Garry J. Wise, Toronto

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Nothing Is Certain (Except Death and Facebook)

Facebook announces a new approach for handling deceased users' pages:

"When someone leaves us, they don't leave our memories or our social network," Facebook director of security Max Kelly said in a blog post Monday.

"To reflect that reality, we created the idea of 'memorialized' profiles as a place where people can save and share their memories of those who've passed."

Profiles of dead people do not turn up in friend recommendations or general searches at Facebook, according to Kelly. Privacy settings on memorialized accounts only let confirmed friends or family members see them.

Also see: Facebook to launch memorial profiles of deceased users

- Garry J. Wise, Toronto

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The End of the MP3?

I doubt it.

- Garry J. Wise, Toronto

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Baby You Can Drive My Car...

... But please don't ever try to park it, again:

But if you think that was bad, try this: Car lands on couple asleep in bed

- Garry J. Wise, Toronto

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Win!

Leafs 6 - Ducks 3.

- Garry J. Wise, Toronto

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Ontario Drivers' Cell Phone Ban Now in Effect

Hands-free cell phone use is now the law in Ontario.

As noted in our April 23, 2009 post on the new provincial law, which took effect today:

The Countering Distracted Driving and Promoting Green Transportation Act, 2009, Ontario's new law banning use of cell phones while driving... amends the Highway Traffic Act to provide:

Hand-held devices prohibited

Wireless communication devices

78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

Entertainment devices

(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.

Certain exceptions to this basic rule are also established:

(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.

Exceptions

(4) Subsection (1) does not apply to,

(a) the driver of an ambulance, fire department vehicle or police department vehicle;

(b) any other prescribed person or class of persons;

(c) a person holding or using a device prescribed for the purpose of this subsection; or

(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.

Same

(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.

Same

(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

1. The motor vehicle is off the roadway or is lawfully parked on the roadway.

2. The motor vehicle is not in motion.

3. The motor vehicle is not impeding traffic.

All is not lost - my recently-purchased Motorola T505 Bluetooth hands-free unit adds much value by doubling as an MP3 player, sending tunes (and phone conversations) from my Blackberry to my car stereo, via FM signal.

After a month's use, so far, so good.

- Garry J. Wise, Toronto

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Food Fight

Associated Press reports on yet another intractable battle that is rearing in the Middle East. This time it's a food fight, initiated in 2008 by a Lebanese economic organization, over the marketing of hummus as an Israeli delicacy:

The issue of food copyright was raised last year by the head of Lebanon's Association of Lebanese Industrialists, Fadi Abboud, when he announced plans to sue Israel to stop it from marketing hummus and other regional dishes as Israeli.

But to do that, Lebanon must formally register the product as Lebanese. The association is still in the process of collecting documents and proof supporting its claim for that purpose.

Lebanese industrialists cite, as an example, the lawsuit over feta cheese in which a European Union court ruled in 2002 the cheese must be made with Greek sheep and goats milk to bear the name feta. That ruling is only valid for products sold in the EU.

Abboud says that process took seven years and realizes Lebanon's fight with Israel is an uphill battle.

Also see: The Association of Lebanese Industrialists's Campaign to Protect OUR FOOD.

Wikipedia also tackles the thorny issue of hummus' origins:

According to Jana Gur, "While not a single Israeli will claim that this chickpea and tahini concoction is anything but Arabic, the status it has reached in Israel is unprecedented anywhere in the Middle East: In Lebanon or in Jordan, hummus is a simple morning fare or a part of a meze table. In Israel it is a religion. The best hummus restaurants, invariably owned by Arabs, are considered national treasures. Guides are dedicated to the best places to "mop up" hummus, books and essays discuss comparative virtues of fluffy Jerusalem hummus as opposed to chunky Galilean versions. ...and supermarket shelves burst with a variety of hummus products, sporting catchy names (most of them Arabic)".^[33] According to Gur, "The success of certain brands of Israeli hummus abroad may have been what brought about Abboud's [Fadi Abboud, the president of the Lebanese Industrialist's Association] anger", leading him to claim that Israel has been "stealing" their country's national dishes, like hummus, falafel,tabbouleh and bab ghanouj.

- Garry J. Wise, Toronto

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