Alternative Dispute Resolution - ADR - It works!

Alternative Dispute Resolution known as A.D.R. is a process of settling or deciding disputes outside of the traditional courtroom where a decision is made by a judge and/ or a jury.  A mediator works to help bring the parties to their own agreement. The mediator helps the parties communicate and is usually the one who delivers offers and counter-offers to each party. Usually mediators avoid giving advice or making recommendations, but instead try to help each party see the other side’s point of view and the strengths and weaknesses of each side’s case.

An Arbitrator is a private judge who decides the issues in dispute based on evidence and the law as it applies to the dispute. This may or may not require a formal hearing and evidence to be called through witnesses. Arbitration is a process with flexible rules where the parties can agree on an efficient way to get evidence to the arbitrator to form the basis for a decision resolving the dispute.  This can be very informal, efficient and different than court proceedings. It is a type of A.D.R. that is used when settlement can not be achieved and someone is needed to make a decision.  Within arbitration there are opportunities for negotiation, mediation and settlement.  We believe that most disputes can be resolved by agreement with the help of an independent facilitator who mediates between the parties or otherwise assists.  When you can not settle it is often preferable to have your dispute decided by a qualified and independent arbitrator rather than going to court. Arbitration is a more private process which can be quicker than court with less chance for appeal after the decision is made. An expert arbitrator with qualifications in a field relevant to the issues of the case is better equipped to decide a technical dispute than a judge.

For disputes between people and companies in different countries International Arbitration is generally better than court due to distrust of foreign courts and the better ability to enforce international arbitration awards under international agreements. We offer mediation, arbitration and other A.D.R. services in Canada and internationally.  Murray Miskin is well known as an arbitrator, trainer of arbitrators since 1985,and as a mediator. Murray has conducted a wide range of commercial arbitrations. Most of Murray’s mediation work relates to personal injury claims where he has expertise from his experience as a personal injury lawyer. Visit our website page with Murray’s C.V. for further details of qualifications and experience. Email miskinlaw@yahoo.com to inquire about our services. Check at http://adrweb.ca to see an availability schedule and for more information on Murray and other ADR professionals.

By definition an umpire is an arbitrator

Murray Miskin has been the principal trainer of non-labour arbitrators in Ontario, Canada since 1985. He teaches a 40 hour course certified by the ADR Institute of Ontario which has been the standard for qualification of arbitrators in this province. The course is usually taught with week night evening classes in Toronto. The last course began April 22, 2008 and ended on June 3rd, 2008. Registration had been open for the next course which was scheduled to take place in early 2009 but the course has continued to be postponed due to Nancy Miskin’s health issues. There was no 2009 course and the next course will likely be in spring 2011 but is not scheduled. We will post full details and open registration at this site once the course dates are set.

FAQs answered: You do not need to be a lawyer or have any pre-requisite training to take this course, it is not required that you attend every class to pass the course but you should not miss a weekend class, the content is applicable outside Ontario but is mostly based on Ontario laws which are similar to those of other Canadian jurisdictions, payment of the full balance of course fee need not be made at the time of registration and payment arrangements can be made, access to classes is easy by car or subway, no this is not labour arbitration but it will be discussed, yes there is work for Arbitrators, and no there is not much homework or requirement to spend much time working on the course outside of classes. It is a 40 hour course meeting Ontario and national standards for arbitrator certification. An ADR Institute Certificate is provided to each student after graduation with no additional charge.

introduction:

The Comprehensive Arbitration Training Course as taught by Murray Miskin is the standard in Ontario for non-labour Arbitrator training. The course began in January 1985 organized by the University of Toronto School of Continuing Studies and the Arbitrators’ Institute of Ontario. That organization then consisted mainly of engineers and others involved in the construction industry. The course originally was called Arbitration II and it was an advanced course of 25 hours instruction taught by Murray Miskin and offered to lawyers and experienced non-lawyer arbitrators. Others who wanted to take the course were required to take an introductory course of 25 hours instruction taught by Howard Levitt and later by Genevieve Chornenki called Arbitration I which provided basic legal and arbitration background. Arbitration II was taught by Murray Miskin until the spring of 1997 and was the course seen as qualifying persons to act as arbitrators in Ontario. That course was accepted in the late 1980’s as the Canadian model for such training. In 1997 the Institute which had grown much larger and become the Arbitration and Mediation Institute of Ontario changed the course structure to be more like the structure of its Mediator training with more practical exercises and small group activities. Murray Miskin continued teaching the new combined 40 hour course which replaced both Arbitration I and II. As the course included the Arbitration I requirements there was no set prerequisite for entry. This course attempts to strike a delicate balance between the needs of lawyers training to be arbitrators or counsel at arbitration and those of other professionals wanting arbitration training who also require legal procedure background that most lawyers already possess. Even experienced litigation lawyers taking the course have commented positively on their learning experience in legal procedure and the benefits of discussion of issues by a group which includes both legal and non-legal perspectives. The course has been enriched by the added small group exercises in negotiation of arbitration agreements, challenging potential bias in an arbitrator and strategizing on a party’s behalf. The process of making a decision and backing it up with reasons is carefully explained. The highlight of the course continues to be a full arbitration hearing of a fire insurance claim defended on the basis of possible arson by the factory owner. The Arbitration and Mediation Institute changed its name to the ADR Institute of Ontario a few years ago and continues its approval and certification of this course.

COURSE REQUIREMENTS – IS THIS ARBITRATION COURSE FOR YOU?

There is no specific pre-requisite for taking this course. Usually almost half of the students are lawyers with most of the rest being professionals or business people. Many students are accountants, engineers, architects or real estate brokers and appraisers. Many students are people who have retired or hope to retire but still earn good income from occasional work where they can apply the skills and experiences developed in their careers. Some of our students have been able to obtain jobs and even judicial appointments with this course being a qualifying factor. Many people are looking for a career change and arbitration may be a path to take if you have the right background or contacts to give you a reasonable chance of being selected as arbitrator Construction disputes are generally resolved by arbitration rather than court as are commercial lease renewal rent and other disputes. Ontario’s new condominium law took away the right to sue for disputes so that if mediation can not settle a dispute arbitration is the next step. There are many other areas where arbitration is becoming the primary method of resolving disputes which can not settle by mediation or other means. Please call directly to Murray Miskin at 905-428-8000 Extension 111 to discuss whether the course is right for you. The course is also of great assistance as a skill and confidence builder for non-lawyer Mediators who require more legal training. For mediators who are not lawyers the course gives the legal background and understanding of civil justice geared to the ADR process which is required to become a roster mediator of the Ontario Courts. Special attention is given to the Courts of Justice Act and the Rules of Civil Procedure. Lawyers benefit by gaining an understanding of how non-lawyers deal with legal issues and situations which makes them better communicators. The classes, which mix lawyers and non-lawyers and people from vastly different backgrounds as students, challenges each student to take a different approach than they normally do in dealing with others.

Sorry

The December 7, 2009 issue of the Law Times newspaper included a detailed article on the impact of Ontario’s Apology Act.  For the article they interviewed Murray Miskin whose comments are noted in the extract below:

Ontario’s recent enactment of its Apology Act, introduced as Bill 108 and passed last spring, aims to allow professional organizations and individuals to simply apologize for incidents gone awry while waiving the confession as a bona fide admission of guilt.

The legislation essentially recognizes the need for people on the receiving end of an alleged wrongdoing to receive an apology — and perhaps a negotiated amount of compensation — from the alleged perpetrator while avoiding litigation.

The hope is that the legislation will lessen the propensity for people to sue for damages resulting from minor incidents and enable more serious cases that end up in the courts to reach settlements expeditiously.

But for years, associations for many professionals along with their lawyers, such as those in the health-care and insurance sectors, have advised practitioners never to apologize. The fear is that the other side would perceive such a move as an admission of guilt leading to litigation or a disciplinary hearing within the governing body.

In passing the legislation last spring, Ontario becomes the fourth province in Canada to enact such laws, joining British Columbia, Saskatchewan, and Manitoba along with a number of U.S. jurisdictions and
Australia.

Yet some industries that lawyers had expected to embrace the legislation haven’t yet adopted policies to acknowledge its advantages that could serve to avoid the cost of litigation in many cases, say lawyers.

“It’s a good piece of legislation with a good purpose,” says Murray Miskin, a lawyer and founder of a firm called ADR Works based outside of Toronto that focuses on alternative dispute resolution as a means to get settlements for clients.

He says the insurance industry is the ideal sector to benefit from the legislation, but so far major insurance companies, along with their lawyers, haven’t been implementing practices in conformity with it.

“They just haven’t yet absorbed the consequences of the act and how it could benefit them,” says Miskin, many of whose clients are people seeking compensation as a result of car crashes. “So the practice of litigation in the area hasn’t changed.”

He says in one matter he handled recently, a client told him that if the driver of a vehicle that caused the crash he was involved in had apologized at the time of the incident, he wouldn’t have sought legal recourse.
But the client instead went to Miskin’s office seeking to launch a lawsuit for his relatively minor injuries because the driver didn’t apologize.

“In most cases, a person would have to be seriously injured” in order to launch a lawsuit for damages, Miskin acknowledges. “But if the other driver doesn’t even say they are sorry, the first thing people think of is [to] sue.”
He suggests insurance companies could benefit by curbing their costs for litigation and even for claims if they informed consumers about the legislation.

“An apology is not an admission, and if people were encouraged to apologize within the provisions set out in the act, it does not mean you’re at fault, and under this act, the apology cannot be used against you in a lawsuit.”

You may read the full article at this link: http://tinyurl.com/ybwlqqd