Administrative Law Module 4

What considerations will decision-makers make in their review before a hearing? (5)

1) need for an interpreter 2) evidentiary gaps 3) security issues 4) mental health issues 5) possible conflicts or issues of bias

What are some of the commonly used processes in facilitated settlement processes? (8)

1) negotiation; 2) mediation; 3) mediation/arbitration (med/arb); 4) conciliation; 5) facilitation; 6) settlement conference; 7) assessment/neutral evaluation; and 8) online dispute resolution.

A hearing may take one of 3 formats

1) oral 2) written 3) electronic (teleconference/video)

What is an example of how a three person arbitration procedure discourages attempts to delay or obstructs proceedings?

Arbitrators can make awards in the absence of one of the parties if there is a refusal to participate. Regardless to whether or not the parties agree, arbitrators have the right to make a decision and impose it on to the parties. Usually a union agreement will call for binding arbitration.

Define arbitration

The use of an arbitrator to settle a dispute 1) The submission or determination of a disputed matter to person selected in a manner provided by law or agreement.

How is a settlement conference similar to mediation?

There is a decision-maker rather than The settlement conference is usually facilitated by a decision-maker appointed by the chair, with the objective of settling some or all of the issues in dispute, considering ways of expediting the resolution of the case, and addressing procedural issues for the pre-hearing and hearing.

Mediated settlement have shown a high/low success rate

High

An assessment/neutral evaluation is a process wherein

a neutral person with expertise in a specific area provides an assessment or opinion of the merits of an issue in dispute.

Mediation is a process wherein

a neutral person with no decision-making power helps people negotiate to settle a dispute.

T/F Dispute resolution processes may be employed at any time before the decision has been rendered.

true

T/F Mediation is used to resolve many kinds of legal disputes as well as community issues.

true

When is a written hearing inappropriate? (1)

when literacy is an issue

How are ADR issues responded to? (2)

1) some statutes explicitly respond to such issues 2) If no statute, the tribunal itself may set up procedural rules to be proactive

What are the advantages of arbitration over court adjudication? (3)

1) special expertise 2) faster process 3) sometimes more room for social concerns (example: when the Japan microcomputer technology company paid $90 million for the right to use USA software.)

T/F A mediator never has any power to extract information from the parties

F

T/F: consensus building is concerned with decision-making.

F

T/f Suggestions or opinions of the neutral advisor or legally binding

F

T/F there is a coordinated effort in Canada to train, license and set standards for arbitrators

False

T/F there is a national body to monitor arbitrators

False

Is mediation binding?

Sometimes, if a tribunal wishes to make it so.

T/F A mediator must be selected and agreed-upon by both parties

T

T/F Mini trials may involve a "neutral advisor"

T

T/F most areas of Canada have organizations that offer arbitration.

T

sine die adjournment

adjournment for an indefinite period -relieves pressure to settle

How can a mediator extract information from the parties (example)

asking for an auditor's report

What is the difference between mediation and conciliation

conciliation often includes having the impartial person shuttle between people who are not able or not willing to meet with each other.

Facilitated settlement processes involve a variety of techniques that are typically transparent/confidential

confidential

Assuming a rule provide that disclosure of evidence or delivery of expert reports must occur not less than 60 days before the date set for hearing, when is the specific timing of this worked out? Who has this discussion? How do they do it?

during the initial pre-hearing conference in discussions between the parties and the decision-making body, following the rules.

t/f during an online dispute resolution, documents cannot be served electronically

f

t/f facilitated settlement processes follow a form of precedent in their decisions

false

T/F The rules of most decision-making bodies are usually too rigid to be tailored to specific cases

false, they are flexible enough to be tailored to a specific case

Pre-hearing procedures typically commence with a pre-hearing __________________

pre-hearing conference

the person conducting the pre-hearing conference may make orders respecting any of the matters discussed depending on the rules of the _____________________

rules of the decision-making body.

What advantages are there for mediation over adjudication by a tribunal? (5)

1) less time 2) less money 3) preserve and strengthen relationships 4) Broader range of possible solutions 5) settlement tailored rather than imposed

Disadvantages of Arbitration (5)

1) limited availability of review 2) no precedent may make decisions ; unpredictable 3) no rules of evidence 4) advantages of arbitration (over litigation) decrease as arbitration becomes more conventional. 5) assumes an equal bargaining position.

What are the advantages and disadvantages of each of the following methods of resolving disputes? Court case Arbitration Mediation Conciliation Negotiation

1) Court case Pro: -Courts have formalized procedures and rules of evidence. -The outcome is binding on the parties, and the adversarial system means there will be a winner and a loser. A successful party may recover some costs. Con: -The process is lengthy and expensive, unless it is in Small Claims Court (claims under $25,000), and may include mediation, settlement conferences, and final decisions for the costs of an application. 2) Arbitration Arbitration often arises from a contract or labour dispute. Pro: -The parties can agree that the outcome will be binding and they can choose their arbitrator. -It is usually a less expensive and shorter process than court. A neutral expert—usually chosen from a pool of qualified and certified professionals—makes a binding decision. 3) Mediation Pro: -In this informal and relatively speedy resolution of dispute, parties can choose their mediator. -Since the process takes into account both parties' interests, they are more likely to buy into the outcome. Con: -informal -Mediation is not often effective where there is a serious power imbalance between the parties. 4) Conciliation Con: -This is the least formal process -the result is not necessarily binding. Pro: Sometimes it is equated with shuttle mediation. In labour disputes, a conciliator can make non-binding recommendations that can be made public. 5) Negotiation Pro: -Negotiation is a form of voluntary bargaining between two or more parties. -In contrast, the objective of collaborative problem solving negotiation is a win/win result that is perceived as fair by all parties. Cons: -In an adversarial situation, the result will likely be a compromise that may not be completely satisfactory for either party.

Diversion in Criminal Justice measures are typically administered by ____________________ and available for who (3)

1) Crown Prosecutor's office 2) youth, first-time offenders, guilty plea/less serious offences

What are techniques to motivate parties to settle before a tribunal hearing (5)

1) Disclosure 2) Firm hearing date; deadline for settlement 3) No Sine die adjournments 4) Pre-Hearing Conferences 5) Mediation (alternative Dispute Resolution)

What pressures are there to conform to mediation (3)

1) Moral obligation 2) humiliation (if prior mediation is made public) 3) contract

What is the scale of least-most outside intervention in civil perspective of Alternative Dispute Resolution (4)

1) Negotiation (just the 2 parties, no facilitator) 2) Mediation (negotiation w impartial mediator and no binding decision) 3) Arbitration (Neutral panel of experts, binding decision) 4) Adjudication (judge, formal process, enforceable decision)

What are the rules of a "neutral advisor" (5)

1) Organize the proceedings 2) hear testimony 3) review documents 4) call upon experts to report 5) render an opinion/suggestion

Examples of Alternative Dispute Resolutions for natives (5)

1) Sentencing circles 2) Diversion in Criminal Justice Natives^ 3) mediation 4) mini trial 5) arbitration

What/who decides the scope of authority governing a tribunal? (2)

1) Statute explicitly states 2) If not, the tribunal interprets from the statute

The timing of these steps may be determined, in part, by __________________ (2)

1) The applicable rules of practice 2) procedure.

A common example of a timeline in case management is: (5)

1) a pre-hearing conference; 2) disclosure of documents for discovery; 3) a list of witnesses; delivery of expert reports; 4) a facilitated dispute resolution process (attempt to settle prior to hearing); and 5) a hearing, if necessary.

Define mini trial (2)

1) a pretrial device to promote settlement in litigation. 2) and abbreviated hearing that combines the process of a court.

How can parties respond to arbitration if they are unhappy with the result? Under what conditions can they make this appeal?

1) appeal may not be allowed or may be limited to another tribunal 2) parties cannot take the matter to court unless there was a flaw in Procedure/process

The agenda for a pre-hearing conference may include discussion of what? (7)

1) clarifying and narrowing the issues; 2) identifying the evidence, including requests for disclosure, and witnesses to be called; 3) explaining the procedures leading to the hearing and the timing of those procedures; 4) setting date(s) for the hearing; 5) explaining the hearing process; 6) identifying any assistance the parties and witnesses might require (for example, an interpreter); and 7) answering any questions about the process.

How can mediation be somewhat binding even if it isn't legally? (2)

1) contract 2) persuasive in court

What factors are generally considered in deciding/arguing a format? (4)

1) convenience/time 2) cost 3) fairness and transparency 4) public participation

Describe the arbitration process for a three-person panel 1) How are the arbitrators selected? 2) What are their duties? (5)

1) each party selects an individual to represent them on the panel and then a third neutral person is selected by either of the representatives or the parties themselves 2) The panel members will -gather information -hear with witnesses -examine evidence -weigh positions -encourage negotiation/suggest concessions

Opposition to mediation (8)

1) sincerity of the interest of the mediator is brought into question when the mediator has a legal background 2) competency of the mediator is brought into question when the mediator does not have a legal background 3) lack of associations to regulate and monitor brings into question the training of mediators 4) no formal rules of evidence or reasoning 5) mediation may not be appropriate for the dispute in question, causing a waste in costs and not always the best legal solution 6) Rights of the parties are not as well protected as they would be in court 7) Only works if parties are honest and forthright 8) if an issue affects public policy or law, a mediation will not set precedent and thus will not be appropriate

A mediator's role usually includes (4)

1) structuring negotiation process 2) helping the parties clarify their needs and interests 3) assisting in identifying and clarifying issues 4) facilitating constructive discussions between the parties

What native issues have arising in Canadian law in the past few decades that involve administrative law? (2)

1) treaty clarifications/negotiations 2) Alternative Dispute Resolutions in the criminal justice system

Who decides which format a hearing should take? (2)

1) tribunal/parties propose/request their preference 2) All are notified with opportunity to object or request an alternative.

When is an oral hearing preferable to a written or electronic hearing? (3)

1) when an outside meeting location is desired 2) when using visual references 3) when working with witnesses

When is a written hearing appropriate? (2)

1) when the facts are undisputed 2) credibility is not an issues

What issues have been raised by the use of ADR techniques by tribunals? (4)

1) where not explicitly given the power (by statute), whether such ADR powers exist for the tribunal 2) Where explicitly given the power, can the tribunal make participation mandatory 3) If, and to what extent, information in the ADR is privileged 4) whether a tribunal member who conduct an ADR may later participate in a hearing involving the parties involved

What are 3 scenarios wherein mediation would not be appropriate?

1) where there is an imbalance in power 2) where the law is clearly on one side 3) one party has an interest in delaying the process.

If you identify any issues or concerns about either conflict of interest or bias, raise this with your _____________ (3) for assistance in determining the appropriate course of action.

1) your chair 2) the body's legal counsel 3) registrar

After the mediator is satisfied that they have collected all of the pertinent information, he or she will . . .

Conduct a private session with each of the parties to determine their major concerns, demands, limitations and concessions, encouraging them to make an offer once they all reconvene again.

How is a "neutral advisor" selected for a mini trial

He or she is recommended by the parties in question

What is the key difference between arbitration and mediation?

In arbitration, the arbitrator can make and impose binding decisions

Sentencing circles came about because of the need for

Natives to have control over their own criminal justice system (since prison was clearly not working for them).

What authority does the mediator have to impose compromise

None, but they can make suggestions

Sentencing Circle: -who is there? (5) -what are their goals?

Offender, family, social worker, PO, band leaders collaboratively decide what is in the best interests of rehabilitation

T/F pre-hearing conferences can be held either in person or teleconference

T

What is the name of the official arbitration Association in Canada

The arbitration and mediation institute of Canada 1976

What is the objective of "consensus building"

To improve the relationship between two groups who are normally opposed to one another.

T/F if negotiation results in an agreement, then that bargain has the same validity as any contractual agreement.

True

T/F one of the purposes of case management is to set a timeline for the parties to ensure timely disclosure of evidence and settlement discussions.

True

T/F the mediator is permitted to offer an opinion on the likely or preferred outcome

True

What are Pre-Hearing Conferences typically used for? what effect does this have on whether or not they should be transparent?

Usually deal with procedural matters thus they need to be public and transparent in order to ensure good government

When does a mini trial work best

When the applicable legal rules are clear

Facilitation is a process wherein . . . (how is it different than mediation?)

a facilitator skilled in communication techniques assists others to communicate effectively thus moving discussions and negotiations towards a successful outcome. Similar to mediation but the mediator plays a more active role in communication.

Who conducts pre-hearing conferences?

a representative of the decision-making body.

The regulations of 3-person arbitration procedure are designed to discourage what?

attempts to delay or obstructed the proceedings

Benefits of Online Dispute Resolution

flexibility over how, when, and where they resolve their disputes.

When can a decision maker go beyond the scope of the materials and conduct their own research into substantive issues?

if enabled by an enabling statute.

How would one facilitate a settlement at a PHC with regards to transparency issues?

sever the settlement portions from the procedural portions, holding the settlement behind closed doors.

T/F representatives of parties will be present at a mediation process

sometimes

Can a tribunal approve of a settlement that is outside of its jurisdiction?

sometimes yes but they shouldn't

Online dispute resolution (ODR) uses ______________ to help resolve disputes

technology