GENEVIEVE CHORNENKI Blog

THE QUEST FOR FAIRNESS - May 9, 2012

Doug Melville, the Canadian Ombudsman for Banking Services and Investments and Howard Sapers, the Corectional Investigator of Canada led a thought-provoking workshop at Ryerson University, Toronto on the afternoon of May 9, 2012.  The question posed was whether a complainant's unique circumstances, particulary cognitive impairment or mental illness, have a bearing on fairness.

Mr. Sapers' office (which has a legislative basis) receives complaints from inmates of federal penitentiaries, a constituency with a high incidence of mental illness and addiction.  By definition, incarcertation involves curtailment of personal freedom and the exercise of power by the state. Mr.Sapers pointed out that complainants with mental health issues may have difficulty communicating their concerns or comprehending the basis of decisions that impact them personally.  Therefore, intake staff must exercise patience and devote their full attention to the individual seeking help.

Mr. Mellville's office (which has voluntary indusytry particiation) informally handles complaints from customers of Canadian financial institutions, a constituency that includes a high proportion of elderly individuals and newcomers to Canada.  He pondered the extent to which power differentials should inform his work and raised the question of how far a financial institution should be expected to go to accomodate people with special needs such as cognitive impairments or addictions.  Of concern to Mr. Melville was the fact that financial institutions must systematized and routinized their services to be cost effective.

A lively discussion took place during this session, leaving audience members to think more deeply about how an ombuds best intervenes in the relationship between an individuals and an institution. 

OMBUDSMAN - LEARNING SYMPOSIUM: MAY 9, 2012

On May 9, 2012, the Forum of Canadian Ombudsman held a learning symposium in Toronto on practice issues that concern ombuds offices.

Valerie Pringle, a founding board member of The Centre for Addiction and Mental Health, was the keynote speaker.  Her talk was entitled, "Give Your Head a Shake: Why I became a mental health advocate and what I have learned".

Ms. Pringle spoke of the prevalence of mental illness and pointed out that addiction and mental illness can be related.  She encouraged the audience (composed of ombuds and independent complaint handlers) to be alert to the stigma, discrimination and isolation that so often accompany these forms of suffering.  

ESTATE DISPUTES - CIVILITY PLUS...

Be civil, concise and focussed.  Respect time limits. Get to the point.  Help us to understand what you are asking for and point us to relevant documents.  That was the message that three Ontario justices delivered to the Trusts and Estates Section of the Ontario Bar Asociation at a dinner on April 24, 2012.  Lawyers were also told to extend information and courtesies to individuals who may be representing themselves in contested estates proceedings.

The judge's message applies to estate mediations, with one exception. It is not always possible, or even advisable, to adhere to strict timelines or compress discussions when family members and their lawyers come together in mediation to try to resolve outstanding disputes.

LIstening is an important aspect of settlement discussions.  And listening - real listening that leads to understanding and then to mutually agreeable outcomes - takes time.  It may not be immediately obvious but the success of a mediation or other like discussion can be directly proportionate to the quality of listing that takes place. 

CANADIAN OMBUDS OFFICES

The fair and expeditious resolution of complaints is important for organizations of all kinds – government, industry, not-for profits and more – and many organizations include an impartial ombuds as one aspect of a resolution program.

Follow this link at the Forum of Canadian Ombuds to see the many and varied applications of an ombuds function in Canada at this time.  http://www.ombudsmanforum.ca/en/?page_id=176/.

 

 

ESTATE MEDIATION - WEBINAR

On Thursday, April 26, 2012, Genevieve Chornenki and Gaylanne Phelan will present a cross-Canada webinar on Estate Mediation.  This program is intended for lawyers and other interested professionals.

Genevieve will discuss how counsel can best prepare clients to participate in mediation and will differentiate between preparation that merits an A+ grade and that which merits a C.  She will also suggest how social science and neuroscience can help lawyers to support effective client particpiation in the mediaton process. 

For more information or to register: https://westlegaledcenter.com/search/displayDailyWebcastSearchResults.jsf

ESTATES DISPUTES & E-MAIL CORRESPONDENCE

Many families communicate by e-mail.  When internal differences arise over inheritance matters, parent care or family cottages, things can get nasty. E-mail correspondence between family members can show and tell all (or much) whether people realize it or not.

I wrote about this in an article published by the Lawyer's Weekly on February 10, 2012.  As an estate mediator, I find records of e-mail correspondence helpful and revealing.  It gives me insights into the people involved and what matters to them.  It shows how they interpret events and intentions.  It provides clues to settlement.

But the estate lawyers that I interviewed for the article were less favourably disposed to e-mail. To see why read  Download Email & Estates Disputes (Published Article)

CONFLICT COACHING: DON'T REACT, REFLECT

Mediation and arbitration are goal-oriented proceses that resolve disputes.  In mediation, the parties work out their own resolution.  In arbitration, the arbitrator imposes the resolution. Both are valid choices, but neither produces meaningful behavioural change. That is where coaching comes in.

In coaching, an individual gains insight with the help of an objective outsider (coach) and chooses new behaviours based on those insights.

On Feburary 27, 2012, the Alternative Dispute Resolution section of the Ontario Bar Association sponsored a presentation on conflict coaching.  Indivdiuals opt for this service when they realize that old ways are not helping them in difficult conversations or conflictual situations.

Presenters stressed that coaching helps people use the reflective part of their brain instead of the reactive part.  By thinking through the situation, including their assumptions and perceptions of others, individuals gain new perspective.  They also gain composure and confidence so that they feel less threatened and are less apt to react or over-react.

For more about this kind of coaching, visit http://www.genevievechornenki.com/conflict_resolution_tutoring.htm

PUBLIC INTEREST DISCLOSURE COMMISSIONER - new aspect of fair process

When a process is fair, it promotes confidence in public institutions and in dispute resolution initiatives like workplace ombuds, industry arbitration programs or other complaint procedures. One aspect of fair process is the ability for an individual to raise concerns without risk of reprisal or sanction.

On Febraury 9, 2012, Kevin Fenwick, the provincial ombudsman of Saskatchewan, was named Acting Public Interest Disclosure Commissioner for that province.  He can now receive complaints from employees of provincial government ministries, agecies, boards and commissions who wish to report wrongdoing in their workplaces without fear of reprisal.  A wrongdoing may be an unlawful act, mismangement of public funds or a substantive and specific danger to the environment.

Fenwick said of his new role, "While research tells us that many public servants will want to report problems internally first, others will choose to report to an independent body and we are pleased...that we are that option."

See also http://www.saskpidc.ca/news/what-s-new/2012-02-09/new-public-interest-disclosure-ready-to-accept-disclosures.html

 

ISMAILI CONCILIATION & ARBITRATION BOARD EVENT

The Ismaili community has a tradition of resolving individual disputes and differences internally through a voluntary process of mediation, conciliation and arbitration. Following tradition, it established one of the earliest community ADR programs in Canada.  

The National Conciliation and Arbitration Board for Canada (CAB) was created in 1987.   Five Regional Boards also exist.  All members serve on a voluntary basis and, to my knowledge, board members respect all relevant national, provincial or territorial laws when carrying out their ADR mandates.

On March 7, 2012, the National Conciliation and Arbitration Board for Canada is hosting a dinner.  The keynote speaker is Ontario’s Attorney General and the topic will be “Improving Access to Justice; The Role of Alternative Dispute Resolution.”

 Background information distributed by CAB:  Download Ismaili_Community_and_CAB_Backgrounder_Feb2012 (1)

 

ELDER & GUARDIANSHIP MEDIATION - new report

 After two years of study, The BC Law institute released Elder and Guardianship Mediation, a report that discusses two emerging uses of the mediation process.  According to this January, 2012 report:

•  “Elder mediation may be understood as the mediation of disputes arising in the context of aging…e.g. estate planning, powers of attorney, caregivers...”

•  “Guardianship mediation may be understood as the mediation of disputes relating to adult guardianship…and is not restricted to the elderly.”

The report contains preliminary ideas about practice guidelines, competencies and standards for mediators or sponsors of these two services, and is a useful resource for the local and national dialogue that is emerging.

 View the report here  Download EGM_Report_Jan_2012