GENEVIEVE CHORNENKI Blog

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

 

 

AVOIDING WILL DISPUTES

On January 10, 2012 The Estate Mediation Group presented 3 dispute-avoidance steps to the Estate Planning Council of Toronto:

1. A testator's willingness to discuss the contents of a will with proposed beneficiaries, at the suggestion of the trust company named as estate administrator
2. The initial steps of convening a Family Conference where a facilitator will lead family members through a discussion about the will; and
3. An individual Conflict Coaching session with the testator to help prepare for a difficult conversation.

The demonstration involved a long-married couple with different ideas about what should be disclosed to the adult children and how.  

Time limits constrained the demonstration, leaving some audience members curious about next steps and outcomes.  Accordingly, a sequel is under serious consideration.

NEW YEAR'S GREETING 2012

As one year closes and another opens, it is my pleasure and practice to make a seasonal donation in honour of clients, colleagues and friends.  This year I chose to support the NOOR program of the International Assistance Mission, the longest continually serving NGO in Afghanistan.  NOOR stands for National Organization for Ophthalmic Rehabilitation and means “light” in Persian. 

Afghanistan has an estimated population of 28 million people, a life expenctancy of 46 years and only 100 ophtalmologists.   Since 1996, NOOR  has provided eye care to around 5 million Afghans without discriminating on the basis of race, creed or social standing.  

To see what prompted me to select NOOR, please see the full text of my seasonal greeting.

Genevieve Chornenki

Download 2011 SEASONAL GREETING

BUSINESS DISPUTES - TO MEDIATE OR TO ARBITRATE?

On December 7, 2011 at its annual Meet N Greet, the ADR Institute of Ontario demonstrated two dispute resolution options for a franchise dispute in which a franchisee objected to an operational change initiated by the franchisor.

The dispute was first mediated and I served as mediator.  Then it was arbitrated and three colleagues served as arbitrators.

Mediation differed materially from arbitration insofar as the business people were concerned.  

In the mediation, the franchisee and franchisor participated directly in the discussions together with their lawyers. For instance, the franchisee explained the economic and personal impact of the operational change from her point of view. The franchisor heard the franchisee's comments first-hand and was able to immediately respond.  The pivotal question in the mediation was whether the franchisor was prepared to acknowlege the legitimacy of the franchisee's concerns and respond to them in a meaningful way.

By contrast, in the arbitration the lawyers assumed a primary role and discussions covered collateral topics such as the prospect of expert witnesses, document exchanges, oral discoveries and how much time the hearing would take. The oral exchanges were in the nature of submissions to the arbitrators who ruled on contested issues one at a time. The franchisee and franchisor seemed relegated to the position of observers despite the fact that the dispute was theirs.

While both processes are valid choices, the demonstration evoked an interesting response from the audience composed of ADR practitioners.  A majority of observers concluded that arbitration is a last resort and every effort should be made to achieve a negotiated or mediated resolution.

Genevieve Chornenki

MEDIATION and JUDGING

At the end of November, 2011 I was a presenter at "Judicial Settlement Conferencing", a course sponsored by the National Judicial Institute for judges across Canada.  Judicial settlement conferences are basically mediations conducted by judges in civil and family cases.

My participation in the course got me thinking about the relationship between mediation and judging, and whether judging had any place in mediation.  Here is what I said.

The word "judging" suggests three different activities to me:

1. Rendering a legally-binding decision, as in "I find for the plaintiff and awarded damages against the defendant."
2. Analysing and categorizing all or part of a party's case to see if it stands up to scrutiny, as in "Based on what I've read this does or does seem like undue influence to me." - and -
3. Assigning a moral position to someone, as in "You are being petty and vindictive."

Of these, the first is a valid activity but is outside the scope of mediation because it imposes an outcome, whereas in mediation the parties work out their own mutually-acceptable resolution.

The second is a permissible activity within a mediation but at a later stage of the process when the view of an objective outsider can encourage the parties to change their perceptions and move closer to settlement.

The third is a matter of philosophy, attiude or habit of mind and I contend that making a moral assessment of another individual is gratuitous.  It has no place in a mediation or adjudication. The only exception is when a decision-maker must choose between mutually exclusive versions of fact and cannot avoid a finding of credibility.  Mediation does not involve decision-making, so that exception will not apply.

Genevieve Chornenki

THE FAMILY CONFERENCE: TALKING ABOUT TABOOS

Many individuals and families have trouble talking about inheritance issues, succession planning or elder care.  And who can blame them?  Unless there is a "culture of conversation" among members, talking seems to involve too many risks.

That is why my colleagues and I (through The Estate Mediaiton Group www.estatemediationgroup.ca) are evolving The Family Conference, a facilitated meeting intended to make uncomfortable conversations more accessible.

On November 3, 2011, we explained to the ADR section of the Ontario Bar Association how a Family Conference can be convened. We walked though our intake form "Thinking It Through", available below.

Convening a meeting and issuing invitations are important first steps but initiators and participants also need to prepare beforehand. What do they want to say and how do they want to say it?  Conflict Resolution Tutoring may be beneficial.

Conflict Resolution Tutoring is one-on-one help from an objective outsider who does not advocate or take sides, and who provides fresh insights and practical support to improve an individual's thinking, choices, words and actions in preparation for a contentious meeting or event.

I will be demonstrating Conflict Resolution Tutoring on Tuesday, January 10, 2012 at the Estate Planning Council meeting in Toronto.

 Genevieve Chornenki

Download Thinking It Through