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     Resolution Alley
         
a publication of the Alberta Arbitration & Mediation Society                                                            
February 2014
     
   


Don Goodfellow, Q.C.
President - AAMS


As President of the Alberta Arbitration and Mediation Society, it is my pleasure to welcome you and invite you to take a stroll with us down Resolution Alley, our new newsletter.  It is also my pleasure to welcome you to the new AAMS website at www.aams.ab.ca .

Resolution Alley is different from the newsletters of other Alternative Dispute Resolution (ADR) organizations, in that we are not trying to communicate with any particular membership.

Our audience is the general public and the average Albertan who may not know a lot about arbitration or mediation, but who may be very much in need of these services. Our audience is also those who may want or need to know more about additional ADR practices such as facilitation, restorative justice and other vehicles by which Albertans can more easily resolve their disputes.

We simply cannot say it enough. AAMS is a federally regulated charity. We do not mediate. We do not arbitrate. We do not answer to a membership or advocate on their behalf.

To visitors reading this newsletter or visiting our website, we are here to help you with any conflict you may be in or any dispute you may have.  We want to keep you out of the courts and keep most of your money in your pocket.

To all the fine ADR organizations in Alberta, we’re here to send you as many people as possible in need of your services.

We’re here to initiate creative and exciting community projects throughout the province to trumpet ADR as a viable and desirable alternative.  You are welcome to participate with us in these initiatives over the coming year.

The only thing we ask of you is to call us. If you are confused and don’t know about mediation, arbitration or other options, call us.

 If you want to work on some of our community projects, call us. If you would like some brochures or additional information, call us.

If you would like a guest speaker to address your organization or make a presentation,  call us.

We are here, and we are here to help.

 
 

 


 

Pete Desrochers
Executive Director, AAMS

Welcome to the first-ever edition of Resolution Alley. Several years ago I wrote about how mediators and arbitrators have toiled nobly and quietly to bring peace to the world.  Perhaps a bit too quietly.  After all this time, most regular folks today still don’t know or care about what we do. My friend Shinji illustrated it perfectly:

Typical Exasperating Holiday Cocktail Party Exchange #1:
“What do you do?”  “I’m a mediator.”  “Hey isn’t this dip delicious?”

Typical Exasperating Holiday Cocktail Party Exchange #2:
“What do you do?” “I’m a mediator.”  “Oh yeah, that arbitration stuff.  Hey isn’t this dip delicious?”

Typical Exasperating Holiday Cocktail Party Exchange #3:
“What do you do?”  “I’m a mediator.”  “Cool! My Zen master is teaching me how to meditate, too.  Can you see through your third eye yet?”

Our profile isn’t high because mediators don’t really capture the public eye through popular culture or mass media.  We’ve never been afforded the glamour and notoriety of lawyers, doctors, cops, bug exterminators, window cleaners and “real” housewives. 

Well, we are the Alberta Arbitration and Mediation Society (AAMS) and our job is to help change all that. Ironically, we have been part of the Alberta community for 30 years, yet we are truly brand new.

This past year we became solely and completely a federally registered charity, splitting from the former organization (which is now the ADR institute of Alberta) and now being solely dedicated to educating Albertans about conflict resolution.

Resolution Alley will feature articles about divorce, wills and estates, corporate conflict, restorative justice, trends in the courts and anything of general interest if relevant to people resolving conflict. Our readership will primarily be average Albertans, although we welcome everyone.

We’ll feature educational articles and regular columns with contributors from other organizations in Alberta that want to announce special events or simply tell you more about what they do.

Although we do not advocate per se, we won’t be adverse to a little editorial comment if we think it is in the public interest and represents the united opinion of our Board of Directors.

Finally, don’t be surprised if you see the occasional cartoon, joke, recipe, household tip, humorous story or video link. Newsletters are supposed to be informative, but also fun!

 
 
 

How Do I Find a Skilled Mediator or Arbitrator?

by Tammy Borowiecki and Paul Conway

As a business leader, as a lawyer, or as someone facing a family breakdown, how do you seek out and find a qualified professional that will mediate or arbitrate a conflict situation and reduce your potential court costs?  Appropriate Dispute Resolution (ADR) professionals offer a range of resolution options that are quicker, more durable and less expensive than traditional litigation or grievance processes.  In Canada, to ensure that arbitration and mediation services offered are of the highest possible caliber, individuals and organizations regularly turn to the national standards as established by the ADR Institute of Canada (ADRIC).   As the provincial affiliate, the ADR Institute of Alberta (ADRIA) represents professionalism in ADR and administers all national designations in Alberta on behalf of ADRIC.  These trademarked designations are:
 

·         Qualified Mediator, Q.Med.

·         Qualified Arbitrator, Q.Arb.

·         Chartered Mediator, C.Med.

·         Chartered Arbitrator, C.Arb.

 
 
 
 

Special Marketing Resources for ADR Professionals

As you know, AAMS' charter is to educate the public on ADR.  To that end we've set up a website and are embarking on an email campaign.  However, it is clear to us that we can reach more people by providing you with the tools to reach your own communities.  To that end we've partnered with our website developers (Digital Smart Tools) to put together a program for you that will help you reach out.   Consisting of monthly emails and daily social media postings this program will eliminate the tedious parts of your marketing efforts freeing you up to network within your own community. 

In addition to these digital marketing efforts, AAMS is committed to developing marketing collateral that you can personalize.  This includes printed success stories, writeups targeted to specific industries,  general brochures, and more - all of which you'll be able to print locally and personalize with your own contact information.  We are also opening a YouTube video channel so you can use our video content without having to direct your prospects to our website.

First of all, let us be clear - at this time this program is only available to those of you who are active ADRIA members.  You're the people we want to partner with on the front end because we know you are qualified ADR professionals.   To do so we've developed a unique program that includes:          

 
 
 
 
 

Christina L. Scott, J.D.
Neutrality: The Cornerstone of Mediation
 
An essential skill for mediators is the ability to remain neutral - not only in words, but in non-verbal communication as well. Staying neutral is often a challenge, but it is necessary in order to maintain the integrity of the process. According to Webster's Dictionary Neutral means "not aligned with or supporting any side or position in a controversy".  Without neutrality, the entire mediation process is in danger of becoming a "judgment" session in which the mediator ends up sending the wrong message to the parties through careless words and demeanor.   Such behavior puts the parties on the defensive and destroys any confidence they have in the process.
 
Mediators should not seek to instigate or manipulate the parties just to get a settlement. After all, "a mediator is not an instigator!" When instigation and manipulation are used, it may send the false message that the mediator favors one position over the other. The parties may actually feel as if the mediator is trying to bend them towards that position instead of hearing their concerns. Mediators often hear things that they may or may not agree with personally, but their behavior and demeanor should not imply their opinion.
 
The mediator's role in court connected mediation should be to filter through all the "noise", understand each party's interests, and seek to facilitate a discussion toward a merging of those interests.
 
Anyone can tell others what they should do in their case or what they should think. Mediators who problem solve, however, make the magic and all the ooh ahh moments possible!
 
 
 

Daniel R. Burns
Attorney & Mediator

 

Don't "Visit" Your Children - Parent Them !

In order to keep up with the current divorce law, I subscribe to a variety of services that contain summaries of recent cases. Many of these cases involve custody of children and almost all use the phrase “the best interest of the child” in determining what to do when the parents are not able to figure out for themselves what is “best” for their children.

        Unfortunately, in almost all of these cases, the courts continue to use the word “visitation” when discussing the time one parent spends with his or her children. I think it’s time that changed!

In my divorce mediation practice, I inform my clients from the start that they will never hear me use the word “visitation” unless I am talking about one of them spending time “visiting” a friend or relative who is in the hospital or in jail!

 
 
 
 



The Advantages of Divorce Mediation

Once a couple has decided to separate or divorce is the best time to consider mediation, although can actually occur at virtually any stage of the divorce.  Sooner is better for avoiding the conflict of our adversarial court system and, of course, legal costs.

Mediation is a wonderful option for avoiding hurtful fights and for easing fears that come with the end of a marriage or intimate relationship.
 

“How will the children and I survive without the help of his income?”
 

“I haven’t been on my own in a long time. How do I look after the kids and maintain a job?”
 

“The children don’t like change. Will we have to move?
 

“Is she going to take the kids away from me? I still want to be a good father”.

“I don’t like his/her new boy/girl friend, especially around my children!”
 

“I brought my inheritance into the marriage. Do I get it back?”

These are just a few of the normal and natural fears that can help be addressed in a non-confrontational manner through mediation without having to lash out at one’s partner

 
 
 
 

Caring for Your Elderly Parents

Over 70 per cent of Canadian seniors have not assigned power of attorney to anyone in case they are mentally or physically challenged in their twilight years.

Many resist, or outright refuse to have those awkward conversations about how they should be cared for later on. Yet poor planning, or the lack of planning, on the part of a senior likely means that person’s adult children will arbitrarily step in to control his or her affairs; and there is a strong likelihood they will not be handled according to the senior’s wishes.

Children presume their parents have wills that will cover all this. But most wills simply deal with what should happen after someone’s death and are not “living wills”.

 
 
 
 

What Happens to Your Children if You Pass On?

I read an article by Charles B. Wagner, a Certified Specialist in Estates and Trusts and a partner at Wagner Sidlofsky LLP in Toronto. He was extolling the value of a will, regardless of whether you think you have enough assets to warrant one.

He demonstrated how this is particularly important if you have children, as it is not necessarily up to you who will have custody of your children after your death.

He cited the case of a young Catholic woman who became Jewish.  She did not have a will and did not specifically appoint a guardian for her child.  The lady passed away and the maternal grandparents applied for custody.

There was no particular mention of the father, other than that he had been Jewish and had also passed away. But the child being raised Catholic was known not to be what the mother wanted. The result was a legal battle to keep the child Jewish. A will might have avoided this contentious confrontation.

 
 
 
 


Good Faith and the Courts

“Court connected” mediation is kind of a process within a process. The collaborative process of mediation takes place within the adversarial process of litigation. When considering the issue of "good faith" in mediation, we must not overlook how it may be viewed by a judge, if the case is not settled and it ends up in court.

When courts are called upon to enforce good faith requirements, they tend to look beyond the mediation process to the "totality of the circumstances" and apply general principles of fair play. There was a case in 2008, where the defendant filed a motion for summary judgment on the eve of mediation while the plaintiffs and their counsel were en route  from another city.

At the mediation, the defendant's participation was limited to presenting plaintiff's counsel with a copy of the motion that had been filed the previous evening. The Court found that the motion had clearly been contemplated well in advance of the mediation session, that defendant's failure to inform the other party caused them to unnecessarily incur expenses, and that it had the predictable effect of rendering the mediation mute.  

The Court concluded that defendants did not act in good faith and that their actions warranted sanctions. It extended the concept of "good faith" in mediation to include not only what happened in the mediation itself but also what happened with the case before and after the mediation.

Mediation practitioners, and those who use mediation to resolve their disputes, must always be mindful that strict compliance with the "good faith" standards may well have to satisfy the standards of mediation and the standards of the court.

This is not rocket science. “good faith” is “good faith”

 
 
 
 

45 Life Lessons

Written by 
Regina Brett, 90 years old, first published by The Plain Dealer,  Cleveland, Ohio.

"To celebrate growing older, I once wrote the 45 lessons life taught me. It is the most requested column I've ever written. My odometer rolled over to 90 in August, so here is the column once more:
 

1. Life isn't fair, but it's still good.

2. When in doubt, just take the next small step.

3. Life is too short to waste time hating anyone.

4. Your job won't take care of you when you are sick. Your friends and parents will. Stay in touch.

5. Pay off your credit cards every month.

6. You don't have to win every argument.
Agree to disagree.
 
 
 
 
 


Old Words With New Meanings

I love the differences in the new social meaning of words. For example Canadians were the ones who created the new meaning for "Cougar" - an older lady who likes dating younger men.

We also were also the originators of the term "Cocooning" - staying home (usually in winter) and doing things with the family instead of going out very much.

With cocooning we envision being in front of the fireplace on a cold or rainy night, playing board games or watching a movie, and sipping on a hot chocolate or a glass of your favorite wine.

There's a new word meaning for a common word that is quite heavily used in the United States that is only just becoming known here. The term is "Nesting".

Nesting refers to divorced or separated couples who still live in the same house after their divorce or separation. For some, it is a temporary measure as one or the other partner prepares to move out in a planned and organized manner.
 

 
 

     
     
   

   
   
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