Legal Systems and Alternative Dispute Resolution

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Menno Simons College is a college of Canadian Mennonite University and affiliated with the University of Winnipeg

Course: Legal Systems and Alternative Dispute Resolution

For each course topic:

Educational objectives are listed below with relevant materials (readings, documents and videos).
Read and think about an educational objective, then use the related materials to master the educational objective.
Use the course discussion board to confer with your classmates regarding unanswered questions.

Legal System One

Please check your course syllabus regarding the 15% of the course for in-class tests. These are surprise tests and may be held on any week. They will cover the topic of the week given or the week given and the week before that.

In class exercise: Draft a rule.

Read the following materials to do the following things:

Why have a legal system?

Outline overhead set at: http://www.havenport.com/msc/lsadrdocs/lglsystohs.htmOutline overhead.

5. Describe benefits of legal systems.

In the Canadian Department of Justice publication, "Canada's System of Justice" (You will be reading several parts of this publication. It may be convenient to print the pdf version available on each page.), read the section titled, "Introduction".

Article Comments:

Rights and duties are correlatives.
Many laws make sense to many people. This suggests some consensus regarding which laws, and their consequential rights and duties, should exist.
Regarding the law balancing rights and duties: The combined rights and duties must be tolerable for a sufficient portion of the population to prevent rebellion.

In the Canadian Department of Justice publication, "Canada's System of Justice", read the section titled, "What is the Law?".

Article Comments:

Laws intended to change or control behaviour.
Laws to change or control behaviour necessary to prevent anarchy.
Some laws made by government and enforced by courts.
Process for relatively peaceful resolution of disputes.
All catchable participants subject to same law.

Comments: What is the Law?

Comments: Regulate Society

Explain why legal systems are relevant to dispute prevention, creation, settlement and resolution.

Provide examples of legal systems preventing, creating, and settling or resolving disputes.

Comments: Creating, Ending and Preventing Disputes

What are rules?

53. Explain ways each of the apodosis and protasis rule elements are relevant to dispute prevention, creation, settlement and resolution.

The introductory section (above the box) of the wikipedia entry on the grammar of conditional sentences (not non-custodial criminal law sentences )at http://en.wikipedia.org/wiki/Conditional_sentence .

Comments: Protases and Apodoses

Distinguish a rule of law from a law of nature.

An apple falls from a tree. That apple obeys a law. Amend that law.

lecture video on differences between people made laws and laws of nature

Distinguish a rule of law from a rule of etiquette.

Imagine yourself standing in line for a ticket to Nirvana. Imagine someone cutting ahead of you in line.

Distinguish a morally correct rule of law from a morally incorrect rule of law.

The former are the ones of which I approve. The latter are the others.

Explain who decides whether a rule of law is consistent with moral requirements.

Me, of course, and certainly not you.

If rules must be consistent with moral requirements, how may rules of law be replaced with contradictory rules of law?

Moral requirements change over time.

Describe the positivist test for whether a rule is a rule of law.

The third paragraph in Cornell law school’s Legal Information Institute’s Wex entry on jurisprudence and read the second paragraph here: http://www.law.cornell.edu/topics/jurisprudence.html.

Positivist test and blue eyes:

lecture video on the positivist test

positivist overhead graphic

blue yes overhead graphic

Comment: Not so fast. It isn't entirely amoral. Why do you think they make rules of law? To cause good results, that is why. And good is moral, right. As examples: They require buildings to meet standards so they don't fall on their occupants. They prohibit some discrimination and permit other discrimination to prevent and encourage behaviours according to their desires. They permit private property because they think allowing private property has better results than not allowing it. Although the choice of whether to permit vehicles to drive on the right or left side of roads seems arbitrary, making that arbitrary choice law promotes the good end of preventing vehicular crashes. So, although the positivist test may avoid moral based arguments over whether particular rules are rules of law, the rules that pass the test still have some moral content and are made to pursue the makers' agendas. See:

The section titled, Moral, Social, and Political Dimensions of Law in: Harold J. Berman "Legal Systems" The Oxford Companion to American Law. Kermit L. Hall, ed. Oxford University Press 2002. Oxford Reference Online. Oxford University Press University of Winnipeg. 8 September 2009 http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t122.e0537. Later we will consider who gets gets to make the laws.

What rules must legal systems follow?

According to the late professor Fuller, to be capable of guiding behaviour, a system of rules must satisfy the following principles:

(P1) the rules must be expressed in general terms;
(P2) the rules must be publicly promulgated;
(P3) the rules must be prospective in effect;
(P4) the rules must be expressed in understandable terms;
(P5) the rules must be consistent with one another;
(P6) the rules must not require conduct beyond the powers of the affected parties;
(P7) the rules must not be changed so frequently that the subject cannot rely on them; and
(P8) the rules must be administered in a manner consistent with their wording.

- "Natural Law," by Kenneth Einar Himma, The Internet Encyclopedia of Philosophy, http://www.iep.utm.edu/, September 10, 2009.

Discuss implications of employing the positivist test for whether a rule is a rule of law for dispute prevention, creation, settlement and resolution.

Relative certainty of which rules are rules of law. Some people disapprove of some rules that meet the positivist test. The rule creation, and subsequent disagreement, could prevent, create, settle and resolve conflict, sometimes simultaneously.

How are Canadian rules of law made and by whom?

Describe Canadian Parliament's rule making process.

Describe how the creation process of a statutory rule may be relevant to dispute prevention, creation, settlement, and resolution.

In the Canadian Department of Justice publication, "Canada's System of Justice", read the section titled, "Parliament" in the section titled, "Where Our Legal System Comes From".

Article brief comments:

Repeated review and debate during drafting
Experts, beaurocrats and other interested parties
Delegation - of general and of quickly amendable.
Application and interpretation by courts

So, the positivist test's actors are governments, their delegates, and judges. Well, governments may certainly be influenced by lobbyists and the winds of public opinion. What about judges?

How are legal rules changed?

Explain ways the Canadian Parliament's rule making process is relevant to dispute prevention, creation, settlement and resolution.

In the Canadian Department of Justice publication, "Canada's System of Justice", read the section titled, "Keeping the Law Up to Date".

Article brief comments:

Change within a population or its opinions leads to change within its laws.
Changes in circumstances lead to changes in laws.
Changes in laws are encouraged by legislators, subject matter experts, interested parties.

Article Comments: Keeping the Law Up to Date

How are the judges organized?

The Canadian Department of Justice has a publication titled "Canada's System of Justice" containing a subsection titled, The Judicial Structure

Article brief comments:

There are many different courts.
There are federal courts and there courts within each province. With ten provinces we end up with many different courts.
Some specialized courts deal with different matters than other courts.
Some courts deal with the same matters as other courts, although usually as an appeal from anotehr court.

Explain reasons for having specialized courts.

Read Supreme Court of Canada's Role of the Court and Supreme Court of Canada's Judicial System and Manitoba Court of Appeal and Manitoba Court of Queen's Bench and Manitoba Provincial Court

Article brief comments:

Over 700 court locations within Canada.
There is a hierarchy within the courts.
Provincial and territorial courts can hear some matters over which the federal government has constitutional jurisdiction.
Judges for some courts are appointed by the provinces and judges for other courts are appointed by the federal government.

Legal Systems Two

In class exercise: Brief a judicial decision.

Rules made by governments

What do statutory rules of law from governments look like?

Describe how the form of a statutory rule may be relevant to dispute prevention, creation, settlement, and resolution.

Summarize Manitoba Human Rights Code subsections 9(1) and (2) which read:

"Discrimination" defined

9(1) In this Code, "discrimination" means

(a) differential treatment of an individual on the basis of the individual's actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit; or

(b) differential treatment of an individual or group on the basis of any characteristic referred to in subsection (2); or

(c) differential treatment of an individual or group on the basis of the individual's or group's actual or presumed association with another individual or group whose identity or membership is determined by any characteristic referred to in subsection (2); or

(d) failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic referred to in subsection (2).

Applicable characteristics

9(2) The applicable characteristics for the purposes of clauses (1)(b) to (d) are

(a) ancestry, including colour and perceived race;

(b) nationality or national origin;

(d) religion or creed, or religious belief, religious association or religious activity; (e) age;

(f) sex, including pregnancy, the possibility of pregnancy, or circumstances related to pregnancy;

(g) gender-determined characteristics or circumstances other than those included in clause (f);

(h) sexual orientation;

(i) marital or family status;

(j) source of income;

(k) political belief, political association or political activity;

(l) physical or mental disability or related characteristics or circumstances, including reliance on a dog guide or other animal assistant, a wheelchair, or any other remedial appliance or device.

Rules made by judges

Explain what is known as a "precedent"

precedent. (2009). In Encyclopaedia Britannica. Retrieved September 8, 2009, from Encyclopaedia Britannica Online: http://search.eb.com/eb/article-9001153

Article brief comments:

The following of an earlier decision by a court, by a court at a later date.
Some courts are not required to follow precedents set by some other courts.
Some courts are required to follow precedents by some other courts.

stare decisis. (2009). In Encyclopedia Britannica. Retrieved September 8, 2009, from Encyclopaedia Britannica Online: http://search.eb.com/eb/article-9069452

Article brief comments:

Facts of two cases rarely considered identical.
In practice there is frequent distinguishing of prior precedent.
Does distinguishing prevent predictability = injustice?
Does distinguishing = unpredictability? = injustice?
If there is precedent, why spend the time and money to ask the court again?

Precedent goals:

lecture video on precedent goals of predictability and flexibility

overhead graphic on precedent goals and inflexibility

Define "distinguishing" a case.

Explain how, if common law is based upon precedent wherein a court's decision is "a rule that will guide judges in making subsequent decisions in similar cases", then it can be that the "common law is flexible and adaptable to changing circumstances"? - What would Professor Fuller say?

Precedent fact example:

lecture video on precedent example

overhead graphic on precedent example

What do judicial rules of law from judges look like?

Summarize the rules of law evident in the Saskatchewan Court of Appeal judicial decision Friskie case available via the Canlii web site at: http://www.canlii.org/en/sk/skca/doc/2003/2003skca72/2003skca72.html.

13. Explain the similarities and differences between a statute and a court decision.

Discuss the relative merits of using legislation to prevent disutes on a large scale and using post dispute ad hoc processes for the same disputes.

Explain which courts' decisions are considered "binding" on which other courts?

Precedent structural and jurisdictional rules:

lecture video on precedent structural and jurisdictional rules

overhead graphic on precedent structural and jurisdictional rules

The video and overhead above suggest the system is clear and consistent. Such a simplification is sufficient for our purposes in this course. For a glimpse of the complexity actually operating in practice, you may read Professor Alvin Esau's article for his Legal Systems course at the University of Manitoba law school titled Note on Precedent at the Trial Court Level here: http://www.umanitoba.ca/faculties/law/Courses/esau/legal_systems/CM-4.htm

How do rule enforcers deal with ambiguity?

Identify sources of doubt about a legal rule's applicability.

Some Common Conditions of Doubt: A Diagnostic Model at pages 230 – 236 of Twining, W. & Miers, D. (1982). How to do things with rules. London: Weidenfield and Nicolson. On reserve.

19. Distinguish between legal formalism and legal realism.

Discuss implications of legal formalism and legal realism for dispute prevention, creation, settlement and resolution.

Return to the Cornell summary of jurisprudence, and read about Formalism and Realism here: http://www.law.cornell.edu/topics/jurisprudence.html then go to their legal feminism summary here http://www.law.cornell.edu/topics/feminist_jurisprudence.html, then go to their Critical Legal Studies page here: http://www.law.cornell.edu/topics/critical_theory.html

Article brief comments

Are we subject to The Rule of Law or rule by the powerful?
Who gets to make statutes?
Who gets to be a judge?
What about predictability?
What about legal rules containing consistency with the population opinions of what is right?
What if the population contains multiple contrasting opinions of what is right?
If I have the power, why would I let you have any?

Explain how the "precedent" system is relevant to dispute prevention, creation, settlement and resolution.

Criminal Prosecution

During this class we will be joined by a Crown Prosecutor.

What you should be able to do after considering the preparatory materials:

1. Distinguish between civil and criminal law.

Some basic distinctions between civil and criminal law:

Read the section titled: How does criminal law differ from civil law? in the Saskatchewan Public Legal Education Association Pamphlet on Criminal Law at: Saskatchewan Public Legal Education Association Pamphlet on Criminal Law

Another general overview is in The Canadian Department of Justice publication titled "Canada's System of Justice" in a subsection titled, Civil and Criminal Cases.

lecture video on civil and criminal

overhead grapic on civil and criminal

Distinguish between the roles of the person charged, the police, the Crown Prosecutor, the Defense Counsel, the trial judge and the jury in a Criminal Prosecution.

Read the section titled: The People in the Saskatchewan Public Legal Education Association Pamphlet on Criminal Law at: Saskatchewan Public Legal Education Association Pamphlet on Criminal Law

On the Manitoba Department of Justice website in the Criminal Legal Process section read, "Role of the Manitoba Prosecution Service".

Distinguish between the laying of a charge and the prosecution of an accused.

List two questions the crown must answer while deciding whether to prosecute.

List two questions the crown must answer when deciding whether to oppose the the release on bail of the accused.

List three results possible after a jury has heard the evidence.

On the Manitoba Department of Justice website in the Criminal Legal Process section read, "The Criminal Case: Step-by-Step".

Describe considerations relevant to the question of whether to refer a matter to a community based program.

On the Manitoba Department of Justice website in the Criminal Legal Process section on the "Policy page read the policy titled, "5:COM:1.1 - Extra-Judicial Community-Based Justice Programs".

How much and what kind of proof is required for conviction?

Read the section titled: Proof of Offenses and the final paragraph in the section titled: How does criminal law differ from civil law? in the Saskatchewan Public Legal Education Association Pamphlet on Criminal Law at: Saskatchewan Public Legal Education Association Pamphlet on Criminal Law

77. Evaluate the usefulness of methods of analyzing whether something occurred.

Simplifying Wigmore’s Symbol System at pages 144 – 148 of Anderson, T. and Twining, W., Analysis of Evidence (London: Weidenfeld and Nicolson, 1991). On reserve.

3. Explain the advantages and disadvantages of the plea bargain process.

plea bargaining. (2009). In Encyclopædia Britannica. Retrieved September 8, 2009, from Encyclopædia Britannica Online: http://search.eb.com/eb/article-9473075

Criminal Defense

During this class we will be joined by criminal defense attorney Ed Murphy.

What you should be able to do after considering the preparatory materials:

14. Summarize Criminal Code of Canada subsection 206(1)(e).

Canada Criminal Code paragraph 206(1)(e) which reads:

206. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years who...(e) conducts, manages or is a party to any scheme, contrivance or operation of any kind by which any person, on payment of any sum of money, or the giving of any valuable security, or by obligating himself to pay any sum of money or give any valuable security, shall become entitled under the scheme, contrivance or operation to receive from the person conducting or managing the scheme, contrivance or operation, or any other person, a larger sum of money or amount of valuable security than the sum or amount paid or given, or to be paid or given, by reason of the fact that other persons have paid or given, or obligated themselves to pay or give any sum of money or valuable security under the scheme, contrivance or operation;

15. Describe whether your summary of 206(1)(e) is consistent with your summary of the Friskie decisions from earlier in this course.

Restorative Justice

4.a. Define restorative justice and assess its benefits and detriments as compared to those of the existing legal system.

4.b. Describe situations in which you think it would be the most difficult for restorative justice techniques to achieve their objectives.

From the University of Minnesota Center for Restorative Justice and Peacemaking read the paper titled: Restorative Justice Dialogue: Evidence-Based Practice.

From the federal Department of Justice, the conclusion of a paper titled, "The Effectiveness of Restorative Justice Practices: A Meta-Analysis".

From the federal Department of Justice, the conclusion of a paper titled,"THE EFFECTS OF RESTORATIVE JUSTICE PROGRAMMING: A REVIEW OF THE EMPIRICAL".

More about rule making

Describe the distribution of Canadian legal rule making power between the respective governments within Canada?

In the Canadian Department of Justice publication, "Canada's System of Justice", read the section titled, "The Canadian Constitution"

In Senator Eugene Forsey's article on Canadian government, read the four page long section titled, "Powers of the National and Provincial Governments"

Describe the distribution of Canadian legal rule making power between the respective courts within Canada?

In the Canadian Department of Justice publication, "Canada's System of Justice", reread the section titled, "The Judicial Structure"

Describe the distribution of Canadian legal rule making power between the respective governments and the courts within Canada?

Here is a statute of Manitoba eliminating the common law rule against perpetuities in Manitoba http://web2.gov.mb.ca/laws/statutes/ccsm/p033e.php

In Senator Eugene Forsey's article on Canadian government, read the three page section titled, "The Rule of Law and the Courts"

Civil Litigation

In class exercise: We will have a mock trial.

Civil Litigation as a dispute resolution process

63. Describe the advantages and disadvantages of the adversarial system.

The Canadian Department of Justice has a publication titled "Canada's System of Justice" containing a subsection titled, Civil and Criminal Cases. In the latter read the sections titled, "How do civil cases proceed?", "What happens at a civil trial?", and "Decisions in civil cases".

procedural law. (2009). In Encyclopaedia Britannica. Retrieved September 8, 2009, from Encyclopaedia Britannica Online: http://search.eb.com/eb/article-9109440

adversary procedure. (2009). In Encyclopaedia Britannica. Retrieved September 8, 2009, from Encyclopaedia Britannica Online: http://search.eb.com/eb/article-9003815

24. Discuss the mechanisms currently operating to protect the public from incompetent lawyers.

The Manitoba Law Society article titled, "CONCERNS ABOUT A LAWYER?" at: http://www.lawsociety.mb.ca/concerns.htm

Judicial review of statutes:

lecture video on judicial review of constitutionality and applicability

overhead graphic on judicial review of rules

Rulemaking authority between statutes and cases:

lecture video on statute and case relationship

overhead graphic on statute and case relationship

Supreme Court of Canada decides the elected parliament’s Criminal Code’s abortion provision violates section 7 of the Charter: The Morgentaler case from the Supreme Court of Canada at (179 pages long, but there is a summary at the start. Don't bother reading the entire decision. It is an example of a court ruling a statutory provision invalid.) http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html

Whose rules?

23.a. Describe the way legislators obtain their power and the tests used to determine their qualifications for their responsibilities.

Discuss implications of the way legislators obtain and use their power for dispute prevention, creation, settlement and resolution.

Read the section titled “Eligibility” in the Elections Canada General Information Backgrounder titled, “Important Considerations for Prospective Candidates” at http://www.elections.ca/content.asp?section=gen&document=ec90790&dir=bkg&lang=e&textonly=false

Comment: If the criteria for being able to make laws is being able to get elected by people we know, thank goodness we have a healthy beaurocracy with subject matter experts in many topics. The elected are able to seek counsel from the knowledgeable.

23.b. Describe the way judges obtain their power and the tests used to determine their qualifications for their responsibilities

Discuss implications of the way legislators obtain and use their power for dispute prevention, creation, settlement and resolution.

Discuss implications of the way judges obtain and use their power for dispute prevention, creation, settlement and resolution.

Read "Process for Federal Judicial Appointments - Introduction ", Office of the Commission of Judicial Affairs web site, retrieved August 19, 2008 from: http://www.fja.gc.ca/fja-cmf/ja-am/index-eng.html including the two links in that text.

Read the section titled, Politics and the Judiciary, in The Canadian Encyclopedia Judiciary article by Professor Gerald L. Gall

As above regarding precedent, we have oversimplified. For a glimpse of the complexity actually involved, read Professor Alvin Esau’s outline regarding judicial appointment at http://www.umanitoba.ca/Law/Courses/esau/legal_systems/outline18-98.html Notice his comments regarding the allocation of seats in the Supreme Court among the regions and provinces and his comments regarding the weight of the independent committee’s recommendations in their “advisory” capacity.

Comment: Assume you were concerned enough about our future to join a political party and seek election. Also assume you won office and knew you may be voted out of power within a few years. If a judge died or retired, and you had the ability to appoint a replacement who would hold the ability to make laws for the next twenty or thirty years until death or retirement, would you be inclined to appoint someone who shares your idealogical view of the world more than someone of a different idealogical view?

Mid-term Test

There will be a mid-term test.

Are there alternative legal systems?

In class exercise: We will do a mock trial, this time allowing the judge to inquire as desired.

9. Describe several known categories of legal systems?

In the Canadian Department of Justice publication, "Canada's System of Justice", read the sections titled, "The common-law tradition", "The civil-law tradition", and "Aboriginal traditions" in the section titled, "Where Our Legal System Comes From".

Meanings of the terms, "Common Law" and "Civil Law":

lecture video on meanings of common and civil

overhead graphic on meanings of common and civil law

The wikipedia entry for legal systems at http://en.wikipedia.org/wiki/Legal_system

Public International Law

10.b. Define "treaty" and "reservation".

The Vienna Convention on the Law of Treaties is here: http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

international law. (2009). In Encyclopaedia Britannica. Retrieved September 8, 2009, from Encyclopaedia Britannica Online: http://search.eb.com/eb/article-233499

11. Define Customary International Law.

international law. (2009). In Encyclopaedia Britannica. Retrieved September 8, 2009, from Encyclopaedia Britannica Online: http://search.eb.com/eb/article-233500

12. Compare and contrast the public international system the Canadian legal system in terms of rule making authority, court jurisdiction, and enforcement measures.

international law. (2009). In Encyclopaedia Britannica. Retrieved September 8, 2009, from Encyclopaedia Britannica Online: http://search.eb.com/eb/article-233495

Negotiation

In class exercise: We will negotiate.

What you should be able to do after considering the preparatory materials:

Explain the dual concerns model.

67. Explain distinctions between distributive and integrative bargaining.

64. Explain the relevance of alternatives for dispute resolution.

Explain what is described as a "fixed pie" and describe a situation that would not be a "fixed pie".

Explain the relevance of framing to perceived wins and losses and the relevance of perceived wins and losses to reaching agreement.

Describe a comprehensive strategy to employ during distributive bargaining.

Discuss advantages and disadvantages of negotiation as a dispute resolution process relative to litigation as a dispute resolution process.

Roy J. Lewicki, Chongwei Wang "negotiation" The Oxford Companion to the Mind. Richard L. Gregory. Oxford University Press 1987. Oxford Reference Online. Oxford University Press. University of Winnipeg. 8 September 2009 http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t159.e619

If still available on the internet: Professor Wertheim's, Negotiations and Resolving Conflicts: An Overview. Try doing a search to find a site at which itremains available.

Arbitration

This week we will be joined by Mr. Gervin Greasley, a Chartered Arbitrator. Some reading materials he has provided are below.

Describe the roles of alternative dispute resolution processes.

Carrie Menkel-Meadow "Alternative Dispute Resolution" The Oxford Companion to American Law. Kermit L. Hall, ed. Oxford University Press 2002. Oxford Reference Online. Oxford University Press University of Winnipeg. 8 September 2009 http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t122.e0028

What advantage is there to hiring arbitrators with subject matter expertise?

Is arbitration a less expensive process than litigation?

What are the implications of these for dispute prevention, creation, settlement and resolution?

Pages 1 - 4 of: arbitration. (2009). In Encyclopaedia Britannica. Retrieved September 8, 2009, from Encyclopaedia Britannica Online: http://search.eb.com/eb/article-9106463

Please read the notes provided by our guest speaker, Mr. Gervin Greasley. They are in a pdf document. In case you do not already have the free Adobe Reader that lets you read pdf documents, you may get it here.

For reference (you need read only the provisions identified below): Manitoba's Arbitration Act

For reference (you need read only the provisions identified below): The ADR Institute of Canada's "National Arbitration Rules" are at http://www.amic.org/ Look under "Rules and Pledges".

Manitoba's Arbitration Act provisions 3, 8(2), 8(3), 17(2), 28(1), 31, 32, 33

The ADR Institute of Canada's "National Arbitration Rules" provisions 2, 3(a), 23(a), 23(b), 26(k), 34 (at http://www.amic.org/ Look under "Rules and Pledges")

Issues Concerning the Specialist Arbitrator, by Clayton Shultz, C. Arb., Clayton Shultz & Associates in the Canadian Arbitration and Mediation Journal, Winter 2004, Volume 13, Issue 2, p. 5. retrived Sept 3, 2008, Go to Arbitration and Mediation Institute of Canada and look under News and Information, then under The Journal.

Must an arbitration be decided by applying the rules of law and precedent?
What are the implications of this for dispute prevention, creation, settlement and resolution?

Manitoba's Arbitration Act provisions 37, 44, 45(1), 48

Is an arbitral award binding upon the parties.
What are the implications of this for dispute prevention, creation, settlement and resolution?

Manitoba's Arbitration Act provisions 53

Describe the relevance of offers to settle to arbitral awards.
see also The ADR Institute of Canada's "National Arbitration Rules" (see above for url) provisions 38, 39, 46
What are the implications of this for dispute prevention, creation, settlement and resolution?

You need read only paragraphs 67 - 68 of: Adesa Corp. v. Bob Dickenson Auction Services Ltd., 2004 CanLII 45491 (ON S.C.)

You need read only paragraphs 55 - 70 of: Hi-Seas Marine Ltd. v. Boelman, 2006 BCSC 488 (CanLII)

May evidence presented during arbitration procedings, and the arbitral decisions, become part of the public record, rather than being confidential?
see also The ADR Institute of Canada's "National Arbitration Rules" (see above for url) provisions 33
What are the implications of this for dispute prevention, creation, settlement and resolution?

Read Chris Honeyman’s Article, “How to Find an Arbitrator” at the CRINFO resource at http://www.crinfo.com/CK_Essays/ck_howto_find_arbitrator.jsp?nid=2452 and The ADR Institute of Canada's "National Arbitration Rules" (see above for url) provisions 43

Briefly review The ADR Institute of Canada's, "Education and Training" page and at the end of it the "Chartered Arbitrator" designation at http://www.amic.org/ Look under "Education and Training".

The ADR Institute of Canada's "National Arbitration Rules" (see above for url) provision 48

40.b. Discuss the mechanisms currently operating to protect the public from incompetent arbitrators.
73. Compare the training required of arbitrators with that of judges.
What are the implications of this for dispute prevention, creation, settlement and resolution?

Additional Questions

36. Provide one example of a dispute which you consider more likely to be appropriately resolved through arbitration than through litigation, and explain why.
37. Provide one example of a dispute which you consider more likely to be appropriately resolved through litigation than through arbitration, and explain why.
39. Provide one example of a dispute which you consider more likely to be appropriately resolved through arbitration than through mediation, and explain why.
What are the implications of this for dispute prevention, creation, settlement and resolution?

Mediation

In class exercise: We will mediate.

What you should be able to do after considering the preparatory materials:

Wikipedia entry on Mediation at http://en.wikipedia.org/wiki/Mediation

From the federal Department of Justice site, the conclusion of a research paper titled, "The Effectiveness of Using Mediation in Selected Civil Law Disputes: A Meta-Analysis".

Compare and contrast litigation and mediation.
Compare and contrast arbitration and mediation.
What are the implications of this for dispute prevention, creation, settlement and resolution?

Read Chris Honeyman’s Article, “How to Find a Mediator” at the CRINFO resource at http://www.crinfo.com/CK_Essays/ck_howto_find_mediator.jsp?nid=2440

Click on the “Find A Mediator” button at http://www.fmc.ca/ or look in the yellow pages.

69. Explain how to find a mediator.
25. Describe the way mediators and arbitrators obtain their power and the tests used to determine their qualifications for their responsibilities.
What are the implications of this for dispute prevention, creation, settlement and resolution?

Read the ADR Institute of Canada Inc.’s About Us document at http://www.amic.org/aboutus.html

Read the Family Mediation Canada’s home page at http://www.fmc.ca/

Regulation of Mediation, How Could This Impact Your Legal Practice by Kari Boyle & Deborah Lynn Zutter for the British Columbia Branch of the Canadian Bar Association.

70. Explain why associations are attempting to create standards for mediators and arbitrators.
68. Compare the training required of mediators with that of judges.
40.a. Discuss the mechanisms currently operating to protect the public from incompetent mediators.
What are the implications of this for dispute prevention, creation, settlement and resolution?

The ADR Institute of Canada's "National Mediation Rules" at http://www.amic.org/ Look under "Rules and Pledges".

The ADR Institute of Canada's "Code of Conduct for Mediators" at http://www.amic.org/ Look under "Rules and Pledges".

71. Compare the types of rules promoted by the ADR Institute of Canada Inc. with those applying to judges.
72. Compare the role of precedent in mediation with its role in judicial decisions.
What are the implications of this for dispute prevention, creation, settlement and resolution?

Mediation Confidentiality Revisited, by Richard J. Weiler, LL.B., C.Med, F.I.A.Med., in the Canadian Arbitration and Mediation Journal, Winter 2003 - Volume 12, Issue 2, p. 3. Go to Arbitration and Mediation Institute of Canada and look under News and Information, then under The Journal.

Confidentiality of mediation process upheld by Ontario court The Lawyer's Weekly, Vol. 27, No. 22.

In Family Mediation Canada Certification Standards read their rules regarding confidentiality.

From Manitoba's Queen's Bench Act:

Mediation by designated mediator

48(1) Subject to subsection (3), unless the parties otherwise agree, neither

(a) a designated mediator who renders services

(i) under section 47, or

(ii) at the request of the parties; nor

(b) a party to the mediation;

is competent or compellable to give evidence in a family proceeding in respect of

(d) knowledge or information acquired during the mediation by a person referred to in clause (a) or (b).

Mediation by private practising mediator

48(2) Subject to subsection (3), unless the parties otherwise agree, where the parties have agreed in writing that the mediation process will be confidential, neither

(a) a private practising mediator who renders mediation services to parties; nor

(b) a party to the mediation;

is competent or compellable to give evidence in a family proceeding in respect of

(d) knowledge or information acquired during the mediation by a person referred to in clause (a) or (b).

Exception

48(3) Subsections (1) and (2) do not apply with respect to a proceeding under Part III (Child Protection) of The Child and Family Services Act.

Discuss confidentiality of mediation procedings.
What are the implications of this for dispute prevention, creation, settlement and resolution?

Human Rights Commission

During this class we will be joined by Manitoba Human Rights Commission Officer Jackie Gruber.

What you should be able to do after considering the preparatory materials:

Available via University of Winnipeg Cybrary: "human rights." Encyclop�dia Britannica. 2006. Encyclop�dia Britannica Online. 3 Sep. 2008:

Introduction at page 1 (article 91062)
“Nonsense upon stilts”: The critics of natural rights at page 5 (article 219322)
The persistence of the notion at page 6 (article 219323)
Human rights at the turn of the 21st century page 31 (article 219350)

Peter Burnell "human rights" The Concise Oxford Dictionary of Politics. Ed. Iain McLean and Alistair McMillan. Oxford University Press, 2003. Oxford Reference Online. Oxford University Press. University of Winnipeg. 3 September 2008 available via University of Winnipeg Cybrary.

The United Nations Universal Declaration of Human Rights at http://www.un.org/Overview/rights.html

Define inalienable.
Discuss the possibility of rights, and consequential dutiesl, not specifically granted by a legislator.
What would the positivists say!?
76. Explain why Manitoba’s Human Rights legislation is labeled a Code rather than an Act.
What are the implications of these for dispute prevention, creation, settlement and resolution?

The Manitoba Human Rights Code is here: http://www.gov.mb.ca/hrc/english/publications/hr-code.html

42. Identify two bases of discrimination not currently listed under section 9 of Manitoba's human rights code, and explain why you think one should be listed and the other should not.
43. Compare and contrast s. 9 discrimination and s. 11 affirmative action under Manitoba's Human Rights Code.
45. Discuss the "justice", intent, and knowledge, in relation to the rule of vicarious responsibility in s. 10 Manitoba's Human Rights Code.
What are the implications of this for dispute prevention, creation, settlement and resolution?

From The Manitoba Human Rights Commission:

Guide to the Complaint Process at: http://www.gov.mb.ca/hrc/english/publications/complaint.html
What is Mediation? at: http://www.gov.mb.ca/hrc/english/publications/factsheets/mediation.html
Guide to a Human Rights Hearing at: http://www.gov.mb.ca/hrc/english/publications/guide-to-a-human-rights-hearing.pdf

Questions for consideration:

Describe ways in which the Manitoba Human Rights Commission Complaint Process is non-legalistic and/or legalistic.
What are the implications of this for dispute prevention, creation, settlement and resolution?

The decision in the hearing of Schroen vs. Steinbach Bible College is here: http://www.gov.mb.ca/hrc/english/publications/schroen.html

46. Assess the predictability of the rule permitting bona fide and reasonable discrimination s. 12 and 14 of Manitoba's Human Rights Code.
What are the implications of this for dispute prevention, creation, settlement and resolution?

Board of Adjudication in Bourrier v. Phil-Can Services Limited and A. Caron here: http://www.gov.mb.ca/hrc/english/publications/caron.html

44. Justify the distinction between instances of harassment requiring more than one action and instances requiring only one occurrence under s. 19 Manitoba's Human Rights Code.
Assess this decision maker's decision in terms of legal formalism and legal realism.
What are the implications of this for dispute prevention, creation, settlement and resolution?

Workers Compensation Board

During this class we will be joined by Manitoba Workers Compensation Board Safework Coordinator Dave Cramer.

What you should be able to do after considering the preparatory materials:

WCB Overview

48. Explain why the Workers Compensation Act was created to remove certain disputes from the legal system.

Special Coverage For Farmers

49. Explain why certain disputes involving injuries to workers were not removed from the legal system.

The Workers Compensation Board backgrounder (specifically Section I titled General Principles) here: The Workers Compensation Board backgrounder

Describe seven general principles of workers compensation.

The Workers Compensation Board backgrounder (specifically Section V titled Principles of Adjudication) here: The Workers Compensation Board backgrounder

Explain the five fundamental questions described under the principles of adjudiction of the Manitoba Workers Compensation Board.

The Workers Compensation Board backgrounder (specifically Section IX titled Appeal Process) here: The Workers Compensation Board backgrounder

Outline and describe the Workers Compensation Board appeal process.

2007 Assessment Rates

The Assessement Rate Setting System

The Rate Setting Model

You should have a general idea of how the 8 steps to employer assessement rates works. You do not need to be able to write out a detailed example of how they work. 8 Steps to Employers' Assessment Rates in 2009

50. Describe the system's measures for allocating the expense of compensation among the employers.

Final Test

There will be a final test.

Syllabus

Menno Simons College in Affiliation with the University of Winnipeg

Course: Legal Systems and Alternative Dispute Resolution

Course Number: CRS-2421-050

Classroom: 1MS16

Meeting Times: This accredited university course meets Thursdays 6:00 p.m. until 9:00 p.m. from September 10, 2009 until November 26, 2009.

Materials fee: There is no materials fee.

Instructor: Cory Lewis, C.A.E., B.A., LL B., LL.M., Barrister & Solicitor, Phone: 222-6656, e-mail: cory@havenport.com

1. Course Description and Topics: Learners in this course read and discuss articles about, and participate in and then discuss exercises involving, the following topics: law; justice; legal systems; rule makers; rule enforcers; civil litigation; criminal trials; arbitration; mediation; negotiation; human rights commission; workers' compensation board.

2. Some topics listed on this course outline may not be covered.

3. Equipment authorized for use during tests and exams: pens using only either blue or black ink. Pencils and pens with ink of other colors are not allowed. Other equipment may be used if advance permission is sought and granted.

4. & 5.

Evaluation Method:

10% - active participation during class discussions & exercise preparations, exercise and debriefs. These grades are determined as follows: (a) I keep a class register and simply mark every time you are present for each of these. I also record particularly helpful or interesting contributions to class discussions.

15% - In-class tests based upon course readings and prior content. Your scores on your best three in-class tests will count toward this 15%. Each of your three best tests scores will be worth 5% of your grade. Consequently, if you write only two of the tests, you would earn, at best, only 10%, rather than 15%, of the course points. There will be at least four such tests. The test dates will not be announced prior to the tests.

37.5% - mid-term test on October 15, 2009 based on materials covered prior to the mid-term test.

37.5% final test on material covered after the mid-term test. The final test will be held on December 10, 2009 which is the date scheduled by the University for the final exam.

Grading Levels for

Legal Systems and Alternative Dispute Resolution Course

Negotiation Theory and Practice Course


SUBJECTIVE EVALUATION	Numerical Equivalent	Letter Grade
Excellent	90 - 100	A+
Excellent	85 - 89	A
Excellent	80 - 84	A-
Superior	75 - 79	B+
Superior	70 - 74	B
Slightly Above Average	65 - 69	C+
Average	60 - 64	C
Marginal	50 - 59	D
Failure	0 - 49	F

6. The final date for voluntary withdrawal without academic penalty is October 30, 2009. If you are considering withdrawing, please feel welcome to speak with me prior to making your decision to learn whether there is any way that I can help.

7. Please see the appropriate items in section VII of the calendar dealing with Senate information on appeals, withdrawal dates, and academic misconduct such as plagiarism and cheating. There are also consequences listed below for submission of papers too closely resembling other papers.

8. The amount of reading expected in the class will be approximately 60 - 70 pages per week. A detailed list of readings, where possible with links to the readings will be provided.

Some of the course articles may have been made available through electronic reserve so you may read them from home via the computer. To do so access to the University of Winnipeg Cybrary Page here . You will need the 14 digit number on your library card and a PIN. If you don't have a PIN click on "Your Library Record" for instructions for getting one. When you get your PIN return to the Cybrary page, click on Reserve Materials, Search for "lewis", then click on course number 2421. Other course articles are available online from the journals available via the University of Winnipeg online Cybrary. The articles are in pdf format so you will need pdf reader software. You may already have adobe acrobat which works.

9. Work submitted for evaluation, other than tests and assignments done during class meetings, must be typed or word processed (i.e. neither handwritten nor printed by hand) in 10, 11 or 12 point type with black ink. Images may be in additional colors.

10. I reserve the right to ask all or any particular student or students for identification when writing a test or examination, therefore, assume that you will be asked for identification.

11. Students with documented disabilities requiring academic accommodations for tests/exams or during lectures/laboratories are encouraged to contact the Coordinator of Disability Services at 786-9771 to discuss appropriate options.

12. As I do not work at the University, I do not keep office hours there. Please feel welcome to telephone or e-mail any time you wish to contact me or arrange a meeting. Telephone usually reaches me quicker than e-mail.

13. A Note about Menno Simons College

This course is offered by Menno Simons College in affiliation with the University of Winnipeg. Menno Simons College (MSC) coordinates interdisciplinary programs and offers courses in International Development Studies and Conflict Resolution Studies in cooperation with several University of Winnipeg departments.

All courses offered by MSC are subject to University of Winnipeg Senate approval and policies, and are open to all University of Winnipeg students.

Menno Simons College was established at the University of Winnipeg in 1989 to develop programs based on the needs of our time and on the distinctive contributions that the Mennonite community can bring to these areas.

Menno Simons College is part of Canadian Mennonite University. Additional information about MSC and the MSC Student Association activities is available from the MSC office at 210-520 Portage Avenue.

14. If you have any questions or concerns about an assignment or evaluation of an assignment Menno Simons College encourages you to first talk with your instructor about it. If you are not fully satisfied with the outcome you can then speak with the Program Coordinator. Finally, if that is unsatisfactory you can talk to Dean of MSC about the matter. If that does not resolve the issue for you the U of W has a formal process for appealing grades and this is explained in section VII of the Calendar.

15. If work is not submitted at least a week before the date I am to submit the grades to the University, the work submitted wont be included in the grades submitted to the University unless unexpectedly I am able to free up time in my schedule to grade the work.

16. Teaching Methods: Class meetings will be used for group discussion of the course readings, preparation for the exercises, participation in the exercises, and post participation discussion of the exercises. Hopefully learning will occur through: preparatory readings prior to the meetings, synthesis of preparatory readings and learners' existing knowledge, discussions during the meetings, participation in the exercises, post participation discussion of the exercises, preparation for tests and preparation of the paper.

17. Required materials: None. Readings are available on paper reserve or E-reserve or online.

18. Assignments: The reading for the class discussions usually involves articles as shown on the reading list.

This outline is available online at http://www.havenport.com/msc/lsadr.htm

Test Anwer Samples

The following former test question and two submitted answers are offered so you may learn the differences between the two types of answers. Notice the greater detail, more drawing of distinctions, use of concrete examples, and more articulate nature of the 9ish answer compared to the 7ish answer. These answers were from before the grading rubric was used. The grading rubric has additional requirements for answers.

The question was: Explain the advantages and disadvantages of the plea bargain process.

The following answer was 9ish:

Plea bargaining provides several advantages and should be retained in our system.

Advantages

Plea bargaining is necessary to prevent backlogs from preventing the processing of cases within a reasonable time. Without prosecution within a reasonable time, cases would be dismissed on charter grounds.

Plea bargain spares victims and witnesses the time and emotion of having to participate in a trial.

If evidence sufficient to convince crown of accused’s guilt, but insufficient to provide sufficient confidence of conviction, plea bargaining can ensure conviction of the same or lesser offense.

Considering the complexity of large collections of facts revealed through Hohfeldian analysis, and the relative ease of raising doubt about intermediate probanda, the difficulties of building an evidentiary case strong enough to pass the “beyond reasonable doubt” test cause one to recognize plea bargaining as a desirable process to obtain conviction in situations where the crown is sufficiently convinced of guilt but the judge or jury may not be “beyond a reasonable doubt”.

Plea bargaining saves the time of judges, attorneys, police, witnesses, and sometimes the accused.

Matters are resolved on a shorter time line than if trial occurred.

Plea bargaining can eliminate the risk of acquittal.

Plea bargaining can help gather information regarding other crimes.

Disadvantages

Plea bargaining can result in victim and public dissatisfaction if perceived result is overly lenient.

Plea bargaining provides incorrectly accused with a difficult choice between: (1) trial and possible conviction and punishment for a greater offense; and (2) consensual conviction and hopefully lesser punishment of a lesser offense. For some, reduced punishment may be preferable to a risk of greater punishment.

Some suggest police and crown may, rather than charge only for offenses for which sufficient evidence is available, over charge in anticipation of offering plea bargains to obtain conviction on a subset of the charged offenses.

If the legal test is that people should be convicted only if the evidences establishes guilt “beyond a reasonable doubt”, then people should not convicted of lesser offenses when evidentiary difficulties would make conviction of the originally charged offenses uncertain.

Plea bargaining outcomes may be based upon the negotiating skill of, and possibly the relationship between, the attorneys.

Even if the attorneys and accused agree to a joint recommendation to the court, the court may impose a different sentence.

The following answer was 7ish:

Advantages:

Plea bargaining lessens case loads of crown prosecutors and saves time and money.

Plea bargaining can help solve other cases if an accused offers information relating to other crimes in exchange for a plea bargain.

Disadvantages:

The accused may feel pressure to accept a plea bargain and therefore plead to an offence they did not commit.

The results may depend upon the quality of one’s attorney, therefore hiring an attorney who negotiates poorly may be bad.

Grading Rubrics

Below on this web page are two grading rubrics. One for short answers such as are often required on tests and another for written papers such as are required to be prepared outside of formal meetings and handed in for grades.

Immediately below are links to pdf documents of the same rubrics for ease of printing. You will need a pdf reader such as Adobe Acrobat to read them.

For use on test papers pdf: Short Answer Rubric

For use on typed papers pdf: Written Paper Rubric

Short Answer Grading Rubric

Correctness is an assumed threshold. If the answer is clearly incorrect and unsupported, you may receive no marks for the answer or reduced marks according to the significance of the incorrectness. Assuming everything in the answer is correct or well supported, the answers will be graded with these percentages

Completeness and thoroughness 60%

Use of clear examples where appropriate 20%

Evidence of independent thought beyond recitation of course content. Ex. Discussion of broader implications, relationships between one or more course topics not expressly addressed during the course, or similarities or differences with non-course material. 20%

Each of the above will be evaluated according to the following subjective criteria to assign the following numerical equivalents:


SUBJECTIVE EVALUATION	Numerical Equivalent	Letter Grade
Excellent	90 - 100	A+
Excellent	85 - 89	A
Excellent	80 - 84	A-
Superior	75 - 79	B+
Superior	70 - 74	B
Slightly Above Average	65 - 69	C+
Average	60 - 64	C
Marginal	50 - 59	D
Failure	0 - 49	F

Written Paper Rubric


Content criteria 70%	approximate grade
outstanding explanation with superior supporting information; unusual insights and flashes of brilliance; creative and original analyses and thoughts; goes well beyond minimum required for assignment.	85 - 100
good solid job on explanation, with excellent support from examples, data, figures, etc.; excellent reasoning, or excellent explanations; goes beyond the minimum required for the assignment.	70 - 84
satisfactory job; does what the assignment asks; decent reasoning or explanations; decent support by data, examples, figures, etc.	60 - 69
decent explanation but too general or some inaccuracies or flaws in reasoning or coverage is accurate but cursory and does not meet the minimum required for a complete answer.	50 - 59
doesn’t effectively address assignment; fails to support assertions with data or examples; unclear explanations; inadequate understanding; major flaws in reasoning or explanations. Or answer missing or does not answer the question.	0 - 49
Writing Criteria 30%	approximate grade
as below, but also has a sense of style, going beyond grammatical correctness to real readability.	85 - 100
excellent paper/paragraph organization, interesting sentences, good grammar, very few spelling errors, does not read like a first draft.	70 - 84
decent organization; serviceable prose; reads like a first draft; a paper with excellent writing will still earn in this level if it contains spelling errors and is clearly not proofread or has incorrect citation.	60 - 69
disorganized; awkward sentence structure; poor grammar; poor spelling; incorrect citation.	50 - 59
similar problems to above, but worse.	0 - 49

Discussion Board

A discussion board for you to discuss this course's topics is available via webct.

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overhead

notes

questions

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