GENEVIEVE CHORNENKI Blog

FEBRUARY 5, 2013 - DISPUTE RESOLUTION IN PLURALISTIC SOCIETIES

On February 5th, I attended a dinner and panel discussion sponsored by the Ismaili community and its National Conciliation and Arbitration Board  (CAB) for Canada. CAB provides community mediation and arbitration services on a voluntary, no-cost basis. Invitees to the event included CAB member-in-training plus outside dispute resolution practitioners, academics and members of the judiciary. 

The event discussed dispute resolution in pluralistic societies, specifically Ontario. Shalini Konanur, Executive Director of the South Asian Legal Clinic of Ontario explained that clinic clients prefer arbitration, such as the process conducted by CAB. The ability to choose a decision-maker from their own community was a key factor.  But being listened to, respected and understood during the process was what counted the most. In my experience, this triad (also called "relational fairness") is what people want and respond to in a dispute resolution process, regardless of ethnicity or other identifiable characteristics.

BEST WISHES for 2013

Marley’s Ghost to Ebenezer Scrooge: 

“Business?  Mankind was my business.”

Charles Dickens, 1843

Happy New Year to all.  As one year closes and another opens, it is my pleasure and practice to make seasonal donations in honour of clients, colleagues and friends. Please see this year's choices. View this photo

WHEN FAMILIES START TALKING - OPTIONS December 21, 2012

Since the release of  When Families Start Talking I've heard from adult children and parents who want to talk about end-of-life wishes, death and estate plans but who naturally have reservations and concerns.  Where and whether to turn for help in initiating and conducting a conversation is a question for them.

Two evolving options are:

One-on-One Coaching where an objective outsider helps an individual (or couple) clarify their intentions, thinking and approach prepatory to a conversation with family members; and 

The Family Conference  where an objective outsider helps parents and/or families to plan, convene and facilitate a family meeting for a specific purpose.

In the above options, the coach or facilitator does not supply the content of the discussion or give any family member medical, legal, tax, accounting or other professional advice.

ESTATE MEDIATION AND OTHER LABELS December 5, 2012

On December 5, 2012 the ADR Institute of Ontario convened a series of roundtable discussions, one of which was about "elder mediation".  The discussion touched on mediator credentials and quickly revealed that elder mediation  may not be the correct omnibus term for conflict management services relating to aging,  death and estates.

Elder mediation concerns disputes that can or might arise in the context of aging or life transitions, such as how to care for an elderly family member or whether a parent should continue to drive. Disputes may involve psychiatic or other medical issues plus consideration of the rights of the elderly or disabled family member.

Estate Mediation involves disputes that relate to the property, entitlements and obligations of a deceased or incapacitated person. Examples would include existing or pending law suits about whether a will is valid, whether an individual was wrongfully excluded from an estate or whether a attorney for property has carried out his or her duties. Psychiatric or medical issues tend to be of a forensic nature. Estate disputes also have overt legal aspects and most often legal advisors attend to negotiate with or for their clients.

Elder mediation and Estate Mediation have many things in common, including multiple parties  and complex family dynamics.  However, their differences must be identified and appreciated before serious efforts at credentialing proceed.

 

"WHEN FAMILIES START TALKING" - CBC IDEAS November 28 & December 5, 2012

In 2012  I presented  When Families Start Talking, a two-part series for CBC Ideas about conversations that do (and don't) happen around wills, estates, end-of-life wishes and other taboo topics.  Part 1 aired on November 28th and Part 2 on December 5th. Both shows are available as downloads.

Many people contributed to "When Families Start Talking".  There were those helped me refine my thoughts and made suggestions or provided references;  those who shared insights and personal experiences; and  those courageous and generous individuals who trusted me in the unscripted and recorded  conversations that now comprise the shows.  I am deeply grateful to all of them.

 

NEW LOCATION & NEW OFFICE MATES - August 1, 2012

Effective August 1, 2012 my office has moved to:

124 Merton Street, Suite 300, Toronto, ON, M4S 2Z2.

where I now enjoy the use of a 12-person boardroom and a break-out room plus the company of collaborative family lawyers, Deborah Graham and Cameron Shouldice .

While my office mates and I share respect and comaradarie, our practices are completely independent and we offer differnt kinds of services to different constitutencies.  

Deborah and Cameron engage in advocacy and legal representation whereas I provide only non-partisan services and do not give legal or other professional advice. 

 

 

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/.