Where Do We Go from Here? A Celebration, Discussion and Exploration of the Future of Dispute Resolution

On February 21, 2019, the Winkler Institute for Dispute Resolution hosted a symposium on the future of dispute resolution as a celebration of the Osgoode Mediation Clinic’s 10th anniversary. The symposium, entitled “Where Do We Go from Here? A Celebration, Discussion and Exploration of the Future of Dispute Resolution,” showcased the breadth of dispute resolution approaches in Canada from a diverse set of speakers and participants. The symposium was buzzing with curiosity and camaraderie as the participants and speakers explored dispute resolution across cultures, innovation in practicing and teaching dispute resolution, and options to expand dispute resolution by leveraging technology.

Kicking Us Off

The day began with a gracious welcome from our director Professor Martha Simmons and a lively, meaningful address from former Chief Justice of Ontario and founder of the Winkler Institute, Warren Winkler. We were grateful to have Bob Bordone, Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and the founder of the Harvard Negotiation & Mediation Clinical Program with us for the day’s keynote address—a topical exploration of the future of dispute resolution and a strong call for conflict resilience. We also welcomed the Honourable Madam Justice Gertrude F. Spiegel as new Fellow of the Institute and were privileged to hear her insights on mediation and access to justice as a judicial mediator during her lunchtime talk.

Dispute Resolution Across Cultures

Indigenous Traditions

Pamela Large Moran and Lori St. Onge identified the challenges of integrating Indigenous dispute-resolution processes based on collaboration and mending relationships with the adversarial justice system. Pamela described the Federal Court practice guideline based on Indigenous approaches of dispute resolution by dialogue as a progressive step towards such integration.

Another effort to integrate Indigenous dispute-resolution approaches into the justice system is the restorative youth circles provided by Peacebuilders International Canada. Peacebuilders provides circles that focus on repairing a young person’s relationships and personal well-being rather than punishing for crimes committed. Representatives from Peacebuilders emphasized that their circles are based on the talking and healing circles used in Indigenous communities. Each participant in the circle is given equal space, positioning, and voice in decision-making.

Ismaili Traditions

The Ontario Conciliation and Arbitration Board (CAB) is based on the traditions in the Ismaili community, a Shia branch of Islam.  Holistic approaches focusing on the root causes of conflict are emphasized in mediation along with the power of apology and an ethos of service.

Innovations in Dispute Resolution

Laura Tarcea and Eva Iole DiGiammarino highlighted the unique services available through the Durham Family Mediation and Resource Centre.  Free family-law information sessions are provided at public libraries.  Parents in conflict receive mediation services and training to de-escalate conflict.  The centre is financed through the sliding-scale fees paid for mediation and grants for specific projects, such as a support group for fathers.

St. Stephen’s Community House in Toronto shares the innovative approach of the Durham Family Mediation and Resource Centre of teaching skills to equip people to resolve disputes in future. St. Stephen’s provides free mediation services in-person or by video conferencing that do not focus solely on addressing the current conflict and instead teach conflict resolution skills.

Daniel Del Gobbo and Lauren Rennie proposed a new approach for addressing sexual assault on university campuses: court-supervised mediation. Feminists are divided about whether a restorative justice approach to campus sexual assault is empowering or another form of victimization in which women are coerced into settlement. Pre-screening of cases and appropriate training for mediators would decrease the risk of re-victimizing women in mediation and allow them to seek reparations while avoiding the trauma of testifying in court.

Deanne Sowter discussed the necessary next steps to continue the innovative momentum of collaborative family law. Intimate partners negotiate a separation and or divorce through four-way meetings involving them and their lawyers with consultation from other professionals as needed. The parties sign agreements to disclose information relevant to the dispute. Honouring the contract and maintaining safety is challenging if domestic violence is involved, especially given the high threshold of risk required for lawyers to disclose safety concerns without client consent. Deanne recommended legislating standards for collaborative law to lower the threshold of risk at which lawyers are permitted to disclose concerns about harm to ensure collaborative practice is safe for everyone.

Innovations in Teaching Dispute Resolution to Law Students

Joshua Karton from Queen’s University highlighted the deepened learning of black letter law concepts that occurs when dispute resolution exercises are included in black letter law courses, such as assigning students a simulation to negotiate a lease in contracts class. Another Queen’s professor Debra M Haak discussed equipping law students with better problem-solving skills to promote dispute resolution by placing the client at the centre of all teaching through approaches such as reviewing the facts of cases along with legal principles. Toby Susan Goldbach from UBC showcased the value of her unique course providing an overview of different dispute-resolution methods in preparing students for legal practice in light of the low percentage of cases resolved through litigation.

Leveraging Technology to Resolve Disputes

Two speakers highlighted emerging resources for online dispute resolution (ODR).  Jean-François Roberge discussed the spectrum of ODR mechanisms available to resolve commercial disputes among small businesses with up to 250 employees.  ODR platforms differ in the type of forum available: video conferencing, audio conferencing, and a virtual room are all possibilities.

Ian Darling described the work of the Ontario Condominium Authority Tribunal in ODR. The Tribunal offers a three-stage dispute resolution process: access to an online forum for parties to negotiate, mediation by a Tribunal member, and adjudication. Confidential communication threads can be started by either party with the mediator to create virtual caucuses. Parties can share documents with each other and the mediator or adjudicator through the online system.

Symposium participants also heard about the potential to use artificial intelligence in dispute resolution. For example, Omar Ha-Redeye noted that the Conflict Analytics Lab at Queen’s University is developing an online small claims tribunal dedicated to self-represented litigants powered by artificial intelligence.  At the pre-trial stage, disputants can answer questions about variables in the case to generate a prediction of an adjudicated outcome based on previous rulings. This prediction can inform the litigant’s position in the negotiation and mediation preceding adjudication.

Heather Heavin and Michaela Keet discussed the importance of quantifying litigation risk to help disputants decide whether or not to accept settlement offers.  Computer programs will generate the calculation. Litigation risk is the probability for success in the litigation of obtaining a realistic projection of damages minus the costs associated with litigation, including emotional distress.

The day wrapped up at Osgoode with an appropriately themed roundtable on pedagogical approaches in experiential and clinical legal education from leaders in the field: Michaela Keet, Gemma Smyth and Martha Simmons, each one representing a different institution but all linked in their deep belief in the value and necessity of this kind of academic exploration.

The high-energy level throughout the day as participants asked questions and shared their reflections on the presentations suggests more innovation is on the horizon for the dispute resolution field.  The answer to the theme of the day – where do we go from here? – seems to be: enthusiastically into the future embracing the many possibilities for dispute resolution.