GENEVIEVE CHORNENKI Blog

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