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

Course: Legal Systems and Alternative Dispute Resolution

The dates for the mediation and arbitration topics have now been switched. Arbitration will now be on October 25th and Mediation will now be on the November 1st.

As stated during our initial class meeting, the 50% of the participation points will be based upon your best two of three assignments which will relate to criminal prosecution and/or defence, mediation, and human rights.

Legal Systems and Alternative Dispute Resolution: [ Syllabus ] - [ Test Answer Samples ] - [ Sept. 6: Legal System One ] - [ Sept. 13: Legal Systems Two ] - [ Sept. 20: Civil Litigation ] - [ Sept. 27: Criminal Prosecution ] - [ Oct. 4: Criminal Defense ] - [ Oct. 11: Mid-term Test ] - [ Oct. 18: Negotiation ] - [ Oct. 25: Arbitration ] - [ Nov. 1 : Mediation ] - [ Nov. 8: Human Rights Commission ] - [ Nov. 15: Workers Compensation Board ] - [ Nov. 22: Extra time and Review ] - [ Dec. 6 Final Test ] -

Legal System One

Read the following materials to do the following things:

The wikipedia entry on the grammar of conditional sentences (not non-custodial criminal law sentences )at http://en.wikipedia.org/wiki/Conditional_sentence and insert link to my note.

53. Explain ways each of the apodosis and protasis rule elements are relevant to the prevention and settlement of disputes

Comments: Protases and Apodoses

The Canadian Department of Justice has an article containing subsections titled Why We Need Laws and Goals of Law on their article titled "What is the Law" here: http://canada.justice.gc.ca/en/dept/pub/just/CSJ_page3.html see also their section at http://canada.justice.gc.ca/en/dept/pub/just/02.html

5. Describe the benefits of legal systems.
Identify makers of rules of law?
How can you distinguish a rule of law from a rule of ettiquette?
How can you distinguish a rule of law from a law of nature?
Explain whether the totalitarian governments and police forces described in the above first article's fifth paragraph are part of a legal system.
Discuss whether a situation such as described in the article's fifth paragraph would be likely to keep the jurisdiction operating without crime on the streets.
The above first article's seventh paragraph identifies fairness as a goal of law then describes a situation contradictory to the situtation described its fifth paragraph. Discuss whether this means the situation described in the fifth paragraph fails to meet a goal of law, and if so, then whose law.
The above first article's eight paragraph describes situations of laws later being recognized as unjust or unfair. Discuss whether the test of whether a rule is a rule of law is whether it is one or both of fair or just.

Comments: Regulate Society

Comments: Creating, Ending and Preventing Disputes

The wikipedia entry on legitimacy at http://en.wikipedia.org/wiki/Legitimacy_%28political_science%29

The wikipedia entry on civil disobedience at http://en.wikipedia.org/wiki/Civil_disobedience

6. and 7. Explain whether acceptance of and obedience to a legal system are necessary for its functioning?
Discuss what you think prevents those practicing "civil disobedience" from acting as though they consider themseves "above the law" with respect to more laws than the subset they protest via "civil disobedience". Why don't they "civil disobedience" regarding all of the other laws which are brought to their attention and with which they disagree as well?

The Canadian Department of Justice article titled Keeping the Law Up to Date.

If a rule is recognized and applied as a rule of law for a number of years and then later thought to be unfair or unjust, does that mean that it ought not to have been a rule of law during those years? Are you a positivist or a naturalist (see the distinction below.)?

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. 9 September 2007 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

The third paragraph in Cornell law school’s Legal Information Institute’s Wex entry on jurisprudence here: http://www.law.cornell.edu/topics/jurisprudence.html. and law, philosophy of. (2007). In Encyclopædia Britannica. Retrieved September 8, 2007, from Encyclopædia Britannica Online: http://search.eb.com/eb/article-36335

55. Distinguish between what a legal positivist and a natural law proponent would say is the test of whether a rule is, or ought to be, a rule of law.
Based upon your answer to the questions of who makes rules of law and how they make rules of law, discuss whether it is necessary for a rule of law to be consistent with moral requirements.
If rules must be consistent with moral requirements, how may rules of law be replaced with contradictory rules of law?
Explain who decides whether a rule of law is consistent with moral requirements?

The wikipedia entry on Lon L. Fuller at http://en.wikipedia.org/wiki/Lon_Fuller

8. What did Professor Fuller write is required of a legal system?
Explain whether Professor Fuller's requirements of a legal system are based on morality.

The Canadian Department of Justice has a publication titled Canada's System of Justice containing a subsection titled, Where Our Legal System Comes From read it up to the section titled "Parliament".

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

The wikipedia entry for common law at http://en.wikipedia.org/wiki/Common_law

The wikipedia entry for civil law at http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29

The common law and civil law systems in Canada topic at http://www.canadiana.org/citm/specifique/lois_e.html

The Canadian Department of Justice has a publication titled "What is the Law" containing a subsection titled, The System of Law and Justice. Read the subsection.

9. Describe several known categories of legal systems?
Distinguish between public and private law.
Compare and contrast common law, civil law, aboriginal law.
One of Fuller's requirements is that laws should be clear. If the Civil Code is, "a comprehensive statement of rules, many of which are framed as broad, general principles, to deal with any dispute that may arise", then how can it satisfy Fuller's requirement when it is called upon to provide specific guidance to answer specific small questions and if it can not, then how can it be called a comprehensive statement of rules?

Read The Canadian Constitution read the information after the title, "What type of government is described by our Constitution?" and Powers of the National and Provincial Governments

Explain what is meant by references to Canada's "federal" legal system and ways it is relevant to dispute resolution?
Explain whether rules made by Parliament may render ineffective rules made by the Manitoba provincial legislature.

The Canadian Department of Justice has a publication titled Canada's System of Justice containing a subsection titled, Where Our Legal System Comes From read its section titled Parliament. Also read from the Parliamentary web site The Parliament of Canada — Democracy in Action. Also read from the Parliament's web site The Work

Describe Canadian Parliament's rule making process.

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

Explain reasons for having specialized courts.
Explain reasons for having some judges appointed by federal politicians and others by provincial politicians.

CORRECTED URL SEPT 21 07: The Canadian Department of Justice has a publication titled Canada's System of Justice containing a subsection titled, Where Our Legal System Comes From. Read the subsection titled, The common-law tradition.

Professor Alvin Esau's articles 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

The wikipedia entry for precedent at http://en.wikipedia.org/wiki/Precedent

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.

Explain what is known as a "precedent"
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"?
Considering that one of Fuller's requirements is that laws should be clear, discuss the operation of the legal system when judges have to make decisions were the law is ambiguous or there is a lacunae in the law?

Legal Systems Two

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

The Royal Canadian Mounted Police and their Strategic Priorities page.

Industry Canada's Guide to Multi-level marketing plans and Schemes of pyramid selling is here: http://www.competitionbureau.gc.ca/internet/index.cfm?itemID=1278&lg=e

28.b. Describe how regulators may interpret statutes.

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

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

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

CORRECTED URL SEPT 21 07: Read "Process for Federal Judicial Appointments - Introduction ", Office of the Commission of Judicial Affairs web site, retrieved August 21, 2006 from: http://www.fja.gc.ca/fja-cmf/ja-am/index-eng.html including teh two links in that text.

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.

Read The Canadian Encyclopedia article on Politics and the Judiciary by Professor Gerald L. Gall

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

This article is available free via the library's online journal database and the abstract may be sufficient for your purposes: Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division Lori Hausegger; Stacia Haynie Law & Society Review, Vol. 37, No. 3. (Sep., 2003), pp. 635-658. Stable URL: Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division Lori Hausegger; Stacia Haynie Law & Society Review, Vol. 37, No. 3. (Sep., 2003), pp. 635-658.

This article is available free via the library's online journal database and the abstract may be sufficient for your purposes: A Competing Risks Model of Supreme Court Vacancies, 1789-1992 Christopher J. W. Zorn; Steven R. Van Winkle Political Behavior, Vol. 22, No. 2. (Jun., 2000), pp. 145-166. Stable URL: A Competing Risks Model of Supreme Court Vacancies, 1789-1992 Christopher J. W. Zorn; Steven R. Van Winkle Political Behavior, Vol. 22, No. 2. (Jun., 2000), pp. 145-166.

This article is available free via the library's online journal database and the abstract may be sufficient for your purposes: Strategic Retirements: A Political Model of Turnover on the United States Supreme Court Timothy M. Hagle Political Behavior, Vol. 15, No. 1. (Mar., 1993), pp. 25-48. Stable URL: Strategic Retirements: A Political Model of Turnover on the United States Supreme Court Timothy M. Hagle Political Behavior, Vol. 15, No. 1. (Mar., 1993), pp. 25-48.

Discuss impartiality in the courts.

Professor Alvin Esau's articles for his Legal Systems course at the University of Manitoba law school titled Basic Approaches to Statutory Interpretation here: http://www.umanitoba.ca/faculties/law/Courses/esau/legal_systems/CM-5.htm and Notes on Contextual Matters on Statutory Interpretation here: http://www.umanitoba.ca/faculties/law/Courses/esau/legal_systems/CM-6.htm

28.a. Describe how judges may interpret statutes.

Return to the Cornell summary of jurisprudence, 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

19. Distinguish between legal formalism and legal realism.

court. (2007). In Encyclopædia Britannica. Retrieved September 10, 2007, from Encyclopædia Britannica Online: http://search.eb.com/eb/article-27083Judicial Lawmaking

The section of the Department of Justice publication “Canada’s Court System” titled, “Keeping the System Fair and Efficient” at http://canada.justice.gc.ca/en/dept/pub/trib/page4.html and The Rule of Law and the Courts

Appendix II Algorithms and the Structure of Complex Rules at pages 431 – 437 of Twining, W. & Miers, D. (1982). How to do things with rules. London: Weidenfield and Nicolson. On reserve.

Examples of courts making rules (These are quite lengthy. They are shown as examples. You do not have to read them in detail. Each has a summary at its beginning.:

Tossing out the elected parliament’s Criminal Code’s anti-abortion provision: The Morgentaler case from the Supreme Court of Canada at (179 pages long, but there is a summary at the start) http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html There is also a wikipedia entry at http://en.wikipedia.org/wiki/R._v._Morgentaler
Prohibition of statutory discrimination against gay people: The Egan case from the Supreme Court of Canada at (The 133 pages long but there is a summary at the start) http://scc.lexum.umontreal.ca/en/1995/1995rcs2-513/1995rcs2-513.html
Redefining obscenity in an adult video store case from Winnipeg: The Butler case from the supreme court of Canada at (89 pages long, but there is a summary at the start) http://scc.lexum.umontreal.ca/en/1992/1992rcs1-452/1992rcs1-452.html
Confirming aboriginal fishing rights: The first Marshal decision from the Supreme Court of Canada ( 76 pages long, but there is a summary at the start) at http://scc.lexum.umontreal.ca/en/1999/1999rcs3-456/1999rcs3-456.html The second Marshal decision from the Supreme Court of Canada ( 76 pages long, but there is a summary at the start) at http://scc.lexum.umontreal.ca/en/1999/1999rcs3-533/1999rcs3-533.html There is also a wikipedia entry at http://en.wikipedia.org/wiki/R._v._Marshall

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

21. Discuss the relative power of the judiciary and the legislators to determine Canadian law.

The wikipedia entry for public international law at http://en.wikipedia.org/wiki/Public_international_law

An overview from Cornell's Legal Information Institute is at: http://www.law.cornell.edu/topics/international.html

10.a. Discuss whether public international law is a legal system?

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

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

The wikipedia entry on sources of international law at http://en.wikipedia.org/wiki/Sources_of_international_law

11. Define Customary International Law.

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

Civil Litigation

Civil Litigation as a dispute resolution process - “Says Me.”

The Canadian Department of Justice has a publication titled Canada's System of Justice containing a subsection titled, Civil and Criminal Cases

procedural law. (2007). In Encyclopædia Britannica. Retrieved September 9, 2007, from Encyclopædia Britannica Online: http://search.eb.com/eb/article-9109440 procedural law

crime. (2007). In Encyclopædia Britannica. Retrieved September 9, 2007, from Encyclopædia Britannica Online: http://search.eb.com/eb/article-261350 The decision to prosecute

crime. (2007). In Encyclopædia Britannica. Retrieved September 10, 2007, from Encyclopædia Britannica Online: http://search.eb.com/eb/article-261351adversarial process

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

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

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

Manitoba Human Rights Code subsection 9(1) and (2) which reads:

"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.

Summarize each of the above two statutory provisions.

Criminal Prosecution

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

Read the sections titled: The Criminal Law, Proof of Offenses, and The People in the Saskatchewan Public Legal Education Association Pamphlet on Criminal Law at: Saskatchewan Public Legal Education Association Pamphlet on Criminal Law

1. Distinguish between civil and criminal law.
How much and what kind of proof is required for conviction?
Distinguish between the roles of the person charged, the Crown Prosecutor, the Defense Counsel, the trial judge and the jury in a Criminal Prosecution.

http://en.wikipedia.org/wiki/Plea_bargain

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

Read Professor David Schum’s A WIGMOREAN INTERPRETATION OF THE EVALUATION OF A COMPLICATED PATTERN OF EVIDENCE from the evidencescience.org web site at http://www.evidencescience.org/pubs/pubs_detail.asp?pubID=68

Read Professor Peter Tiller’s “Picturing Inference - An Essay in Honor of Professor Lothar Philipps” at http://tillers.net/

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.

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

Criminal Defense

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

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;

14. Summarize each of the above statutory provisions:

(Make note of the following instructions before going to the page shown below or you wont know what to do when you get there.)

1. Go here: http://www.lawsociety.sk.ca/newlook/Library/fulltextnew.htm

2. In the "style of cause" box type in: friskie

3. Press the "Submit Query" button

4. The two decisions are:

The Saskatchewan Provincial Court decision:

R.v. Friskie

PC01059 (MAKE SURE IT IS THIS NUMBER because there are two provincial court decisions shown. Read the 23 page decision rather than the 10 page decision)

Date of Judgment: September 24, 2001

Number of Pages: 23

The Saskatchewan Court of Appeal decision:

R. v. Friskie

CA03072

Date of Judgment: August 11, 2003

Number of Pages: 22

Click on the Case Name to see the Full text of the Judgment

You do not have to read this one:

R.v. Friskie

PC01025

Date of Judgment: March 26, 2001

Number of Pages: 10

15. Summarize each of the above two court decisions:
Which interpretive technique do you think the courts did in the decisions? Did the courts purport to do what you think they did?
13. Explain the similarities and differences between a statute and a court decision.

Use online library access to read pages 353 - 362 of Louise Ellison (2001) The mosaic art?: cross-examination and the vulnerable witness1 Legal Studies 21 (3), 353–375. doi:10.1111/j.1748-121X.2001.tb00172.x

Read from Professor Douglas O. Linder’s Famous Trialsweb site from The Alger Hiss Trials, the testimony of Dr. Carl A. Binger including Assistant District Attorney Thomas Murphy's cross-examination of Dr. Binger at Testimony of Dr. Carl A. Binger

Discuss benefits and detriments of examination in chief and cross examination.

The Federal/Provincial/Territorial Working Group on Restorative Justice discussion paper at: http://canada.justice.gc.ca/en/ps/voc/rjpap.html There is also an appendix to the paper.

Articles on restorative justice principles are available from the Centre for Restorative Justice & Peacemaking at the University of Minnesota's site at: http://rjp.umn.edu/Copy_of_Restorative_Justice_Princples-43ea0f281841a.html

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.

Mid-term Test

There will be a mid-term test.

Negotiation

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

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. 14 October 2007

Professor Wertheim's, Negotiations and Resolving Conflicts: An Overview available online at http://web.cba.neu.edu:80/~ewertheim/interper/negot3.htm

65. Distinguish between positions and interests.
67. Explain distinctions between distributive and integrative bargaining.
Explain the importance of looking for "differences" for the negotiators to trade.
64. Explain the relevance of BATNAs for dispute resolution.
Discuss whether, and if so, how, Batnas may be relevant during integrative negotiations.
66. Explain how “objective” standards are useful during negotiations.
Discuss advantages and disadvantages of negotiation as a dispute resolution process relative to litigation as a dispute resolution process.

Arbitration

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".

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.

The introduction page of "arbitration." in: Arbitration. (2007). In Encyclopædia Britannica. Retrieved October 14, 2007, from Encyclopædia Britannica Online: http://search.eb.com/eb/article-9106463.

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

The ADR Institute of Canada's, "What is ADR" article at http://www.amic.org/ Look under "News and Information".

Is arbitration a less expensive process than litigation?

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

Must an arbitration be decided by applying the rules of law and precedent?
see also The ADR Institute of Canada's "National Arbitration Rules" (see above for url) provisions 2, 3(a), 23(a), 23(b), 26(k), 34
see also 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 Go to Arbitration and Mediation Institute of Canada and look under News and Information, then under The Journal.

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

Is an arbitral award binding upon the parties.

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

Manitoba's Arbitration Act provisions 11(1, 11(2), 11(3), 19(1), 19(2), 21(1), 26(3), 26(4), 35(1), 35(2), 45(1)(f) see also The ADR Institute of Canada's "National Arbitration Rules" provisions 16, 18.

Describe apparent contradictions in the above provisions.
see also The ADR Institute of Canada's "National Arbitration Rules" (see above for url) provision 23(b), 43

Adesa Corp. v. Bob Dickenson Auction Services Ltd., 2004 CanLII 45491 (ON S.C.)

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

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

and

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".

and

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.

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.

Mediation

Our second 5% in class assignment will be during this class and regarding mediation.

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

"mediation." Encyclopædia Britannica. 2006. Encyclopædia Britannica Online. 22 Aug. 2006 <http://search.eb.com/eb/article-9051731>.

ADR: What is the Real Alternative?, by Michael Fogel, LLB, J.D., M.Ed., C.Med., in the Canadian Arbitration and Mediation Journal, Winter 2002 - Volume 11, Issue 1, p. 10. Go to Arbitration and Mediation Institute of Canada and look under News and Information, then under The Journal.

Compare and contrast litigation and mediation.
Compare and contrast arbitration and mediation.

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.

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.

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.

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

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.

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.

Human Rights Commission

Our third 5% in class assignment will be during this class and regarding human rights.

The class agenda for this class is:

6:00 - 7:00 Jackie Gruber from the Manitoba Human Rights Commission

7:00 - 7:35 In-class 5 percent test

7:45 - 9:00 George Gerwin, head of the ADR section of the Manitoba Bar Association and managing lawyer of the Brock Derwin Law Firm

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

"human rights." Encyclopædia Britannica. 2006. Encyclopædia Britannica Online. 22 Aug. 2006 <http://search.eb.com/eb/article-9106289>.

"human rights." Encyclopædia Britannica. 2007. Encyclopædia Britannica Online. 2 Nov. 2007 http://search.eb.com/eb/article-219323.

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. 2 November 2007 http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t86.e619

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

76. Explain why Manitoba’s Human Rights legislation is labeled a Code rather than an Act.

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.

The Manitoba Human Rights Commission's Guide to the Complaint Process is here: http://www.gov.mb.ca/hrc/english/publications/complaint.html

Describe ways in which the Manitoba Human Rights Commission Complaint Process is non-legalistic and/or legalistic.

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.

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.

Workers Compensation Board

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

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

Extra time and Review

Preparatory Materials:

None

Final Test

The final test is on December 13, 2007.

Syllabus

Menno Simons College in Affiliation with the University of Winnipeg

Course: Legal Systems and Alternative Dispute Resolution

Course Number: 61.2421/3-050

Classroom: 3M59

Meeting Times: This accredited university course meets Thursdays 6:00 p.m. until 9:00 p.m. from September 6, 2007 until November 22, 2007 and the final test is December 13, 2007 at 6:00 p.m.

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 to use during tests and exams are: pens with only either blue or black ink. Pencils and pens with ink of other colors are not allowed.

4. & 5.

Evaluation Method:

20% - 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. (b) During some classes I may ask you to individually or group brainstorm and/or do a mindmap for a topic or prepare in written form for a simulation. If so, and I request that they be handed in for grading, they will be graded on thoroughness, elaboration, articulation and correctness.

As stated during our initial class meeting, the 50% of the participation points will be based upon your best two of three assignments which will relate to criminal prosecution and/or defence, mediation, and human rights.

40% - mid term test on October 11, 2007 based on materials covered prior to the mid-term test.

40% final test on material covered after the mid term test. The 40% final test will be held on December 13, 2007 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, 2007. 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. The final test is on December 13, 2007.

8. 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.

9. 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, is available on the course web page at http://www.havenport.com/msc/lsadr.htm.

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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. Menno Simons College encourages all Conflict Resolution Studies students to take up any disputes regarding grades, first with your instructor, then the Conflict Resolution Studies Coordinator, then the chair of the Menno Simons College departmental review committee, then the University of Winnipeg Appeals Committee (if we cannot come to a satisfactory resolution).

16. 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.

17. 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.

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

19. 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/negot.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.

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.