ADR Lecture Slide Notes Chapter 1-4

Chapter One: The Importance of ADR for Paralegals

The history of ADR in Law:

 Adjudicative approach has dominated
 Lawyers’ training focused on legal theory and trial advocacy
 Yet, only a fraction of disputes end up in court
 Traditionally little focus on conflict resolution
 Law schools focus on right-based model – the rights of the individual are protected
against the oppressive assertion of another – emphasis on “winning”
 More recently, courses being offered in ADR and negotiation
 Increase in large corporations and demand for corporate and commercial legal services
 Trend towards larger law firms / fewer sole practitioners
o Dilemma for clients
 Cost of going to trial is excessive – how much?? (more than average income for
Canadian families)
 Need legal services to evolve to address current trends and meet societal demands

A Brief History of Paralegals in Ontario:

 A role of paralegals has evolved over past several decades
 Need for alternative legal service providers
 Ontario legislation unclear- “agents” often used for non-lawyers representing clients
before courts and tribunals
o 1987—Pointts Court of Appeal decision
o issue: could an agent provide legal services for a fee?
o Some activities permitted, but this was interpreted too broadly
o Many paralegals investigated and charged
o Pressure for more affordable legal services was mounting
 1990—Ianni Report
o Should be allowed to deliver a limited range of legal services to the public; should
be regulated
 2000—Cory Report brought renewed interest in paralegal regulation
o Aim was access to justice; but which body to regulate?
 2006—Bill 14, Access to Justice Act, 2006
o LSUC (now LSO) regulator

Access to justice:
 Access to Justice = ability to use the legal system to obtain justice
 Section 7 of Charter:
o Guarantees right to fundamental justice – life, liberty, and security of the person
o Implies right to reasonable access to law in a free and democratic society
governed by rule of law
 Complexity of legal system = barrier to access to justice
  Large proportion of people have tried to self-represent in court
 Access to justice ≠ access to courts
 Access to courts = equal right of citizens to participate in all institutions of law as an
integral part of a constitutional democracy
o Physical accessibility
o Broader societal ways that the legal system impedes or promotes economic or
social justice
o How can our justice system better accommodate all our vastly different
communities?
o What are some of the barriers for different communities of people?
 Language, disability, cultural, age, socio-economic status
 Some areas of law steering away from adversarial approach:
o Collaborative family law
o Criminal restorative justice
 Other initiatives:
o Simplified rules
o Mandatory mediation
 Other organizations:
o LSO
o Legal Aid Ontario
o Pro Bono Law Ontario
 Mandatory mediation introduced in Ontario in 1999
 Prior to mandatory mediation, judicial pre-trials common
 Mediation:
o Process where mediator facilitates negotiations between parties
o Used for wide range of conflicts
o Can be mandatory or voluntary
 Judicial Mediation:
o Judge acts as mediator prior to proceeding to trial
 Administrative tribunals also use ADR mechanisms
 ADR now considered essential
 Rules of Professional Conduct & Paralegal Rules of Conduct
o Clients must be advised of ADR methods
 So we know that this is a vital part of our legal system, how do we use it effectively for
our clients?

The role of paralegals in ADR:

 Paralegals and ADR are closely intertwined:
o Both are considered alternatives to the mainstream norm
o More affordable than traditional alternatives
o Enhance access to justice
 Paralegals can take on various ADR roles:
o Support to lawyers
o ADR practitioners (facilitators, arbitrators, mediators)
 o Represent own clients in many ADR proceedings

Chapter Two: Understanding Conflict

What is Conflict:
 Conflict: state of disharmony resulting from opposing views or incompatible
positions/interests
 = some type of opposition
o Incompatible goals/values – internal being, moral values/beliefs
o Attempts to control
o Antagonistic feelings/interests
o Individual or group negatively affected
o Mutual feelings of hostility
 Conflict does not have to be negative
o It can be positive and necessary
o It is inevitable and normal

How Does conflict Happen:

 Some conflicts internal, others external
 Incompatibility in fulfillment of interests, needs, or goals
 When something blocks you from getting what you want
 Other party: someone who has an opposing position and differing underlying interests
 All species, demographics, and cultures have conflict
 Incompatibility in fulfillment of interests, needs or goals
 Average person does not deal with conflict effectively
 Anger
 Blaming
 Silent treatment
 Unproductive conflict resolution strategies can be a waste of time, money, and resources
 Can also cause stress to relationships- neighbours, exes, friends, family
 When does a paralegal come in?
o Choice – consultation and intention to engage legal remedies
o Person realizes they need legal assistance, guidance
o Forced to deal with issue i.e. charged with an offence
 Legal professionals can play a critical role in resolving matters
o Resolving outside of courtroom leads to more cooperative and productive
outcomes
o Greater compliance when parties agree on resolution
o Parties have a personal sense of responsibility when involved in settlement

Resolving Conflict:
 Where to begin? Need to get in the right state of mind
 Suspension
 o Resist temptation to fix, correct, and problem-solve
o Examine the issue more closely
o Consider thoughts, emotions, and concerns before acting on them
o 24-hour rule = allows parties to assess their own conflict management tendencies
and adopt most appropriate style
 Watch the dispute from the “balcony”
 Different people deal with conflict in diverse ways
 Each person has dominant (default, natural) style
 Dominant style can change:
o Over time
o With experience
o To suit the environment
 Paralegals should be aware of client’s style to determine best way to respond
 Important to be aware of conflict resolution style of opposing parties and their
representatives
 Thomas-Kilmann Conflict Management Styles: Page 31
 Competing
 Collaborating
 Compromising
 Avoiding
 Accommodating
 Competing
o Goal is to win
o Not concerned about relationship: “I just want to win”
o Use at trial “affective at trial” acceptable to compete
 Collaborating
o Willing to work together “want to discuss the problem and all options”
o Useful if there is an ongoing relationship “next door neighbor”
o Use in settlement discussions and mediation
 Compromising
o Committed to settle
o Specified time frame
o Last resort—quick agreement
 Avoiding
o Emotional matter
o Time needed to calm down
o Temporary avoidance = suspension
 Accommodating
o Case is not strong
o Preserve relationship
o Use for interpersonal conflicts
Homework Case study:
o Exercise – what is your conflict style?
o Case for Discussion – Smooth Moves Paving – Pg 32 of Text
Questions:
o Source of conflict – what values are at odds here?
o Escalated/yelling exchange – what style?
o Outcome – what style?

Chapter 3: Conflict Theory

Attribution Theory:
 Psychological based theory
 Based on the concept that people try to make sense of the world around them
o Making inferences about other behaviours
 Conflict driven by attributes (i.e. blame) we assign to others
 Internal Attribution: behaviour explained by personal characteristics (personality or
motive)
 External Attribution: inference about behaviour based on factor outside of person’s
control
 Ex. Landlord and the late rent- unlikely to see it as the landlord’s fault; but rather blame
the tenant (even if the landlord was unavailable to receive the rent payment)
 Attribution = assumptions
 Fundamental Attribution Error:
o Tendency to attribute others’ behavior to internal characteristics but our own to
external factors
o Act on assumptions without verifying
o Causes the landlord to distrust (even though late rent might be partially
landlord’s fault)
 Self-Serving Bias
o Assign internal attributions when we are successful but external attributions
when unsuccessful
o Landlord might think that ppl want to live in her suite because she is kind and
reasonable; if finding it hard to find tenant’s she will think its because it’s a tough
economy
 Need to be aware of fundamental attribution error and self-serving bias

Human Needs Theory:

 Conflict caused by inability to meet fundamental needs, including:
o Safety and security
o Belongingness and love
o Self-esteem
o Personal fulfillment
o Identity
o Cultural security
o Distributive justice (i.e. fair allocation of resources)
o Participation in society
 - Landlord who is owed rent feels a threat to distributive justice; tenant
who cannot pay feels a threat to safety and security
 Provides insight into possible sources of conflict
 Deep analysis of conflict can reveal common goals
 Determining which needs have been jeopardized may help to understand underlying
interest

Systems Theory:
 Set of principles that apply to complex, interacting wholes as a way to understand them
 Understand how processes, events, and things are interrelated
 Conflict cannot be viewed in isolation—must be viewed in relation to entire system in
which it takes place
o System could be a family, a company, social organization – a social unit or
grouping
 Cannot just look at one side of the dispute / one moment
 Altering one part of system causes stress on other parts of the system
 Requires an understanding of history and status quo of the conflict
o Landlord example – not just a late rent payment, but must consider the previous
relationship between the parties, what was agreed on; landlord relationship
with other tenants
 If one part of the system is altered, is causes change through the rest of the system
 Landlord example – altercation/yelling between one tenant and landlord, may alter
relationships between landlord and other tenants

Circle of Conflict:
 Diagnose conflict by examining six possible causes:
o Data: incomplete or incorrect information; “facts” being interpreted
o Values: clash of differing values and beliefs
o Experience/relationship: past situations that drive current situation
o Externals/moods: unrelated to substance of the dispute but have an impact
o Structure: competition for limited resources, lack of authority, differences with
priorities
o Interests: what has caused a party to come to a position; what is really
important to that party

 Diagnose conflict by examining six possible causes:

o Data: error in lease agreement
o Values: inappropriate to drop off rent on religious holiday
o Experience/relationship: previous disagreements
o Externals/moods: landlord has other vacant units and is stressed
o Structure: the lease agreement sets out tenant’s right to privacy; and LL right to
receive rent
 o Interests: common interest of upkeep, but tenant may want to withhold rend
until work is done; and LL might need the rent to pay for the work

Perspectivism:
 How do we use these conflict theories? perspectivism
 No one correct theory or viewpoint
 People see things differently in conflict situations
 Punctuating the conflict
o Selecting which information to analyze; decide how it fits in
o Think about a fact pattern and how you issue spot
 Perspectives shape interpretations and understanding
 Conflict best understood if viewed from different angles and by applying a range of
theories
Chapter Four: Conflict Resolution Skills

Communication:
 Good communication is an essential life skill
 Foundation of relationships
 Creates opportunity for conflict resolution
 Allows a paralegal to understand client’s position and interests
 Communication requires:
o Appropriate speaking skills
o Use of non-verbal communication
o Active listening
o Relating to others
Verbal Communication:
 Conveying messages to others by speaking
 Often misunderstood and misinterpreted
 Manifest content: Actual words and content of your message
o Clarity: speak to be understood; no legalese or legal jargon; no ambiguous
language
o Blaming: counter-productive to use blaming language; escalates the conflict
 Why did you fail to build the deck properly? Versus We need to discuss
the construction issue related to the deck
o Future focus: looking ahead instead of at the past because you cannot change
what has already been done – how can we make sure this does not happen
again?
 Delivery:
o Speed
 Too quick seen as nervous or anxious
 “fast talk” salespeople or swindlers
 Tone
o Emphasis on key points; demonstrates appropriate amount of seriousness for
the matter
 Articulation
o Speak clearly
 Reaction:
o Self-monitor
o Watch for reaction to your statements, adjust wording accordingly

Non-verbal Communication:
 Expressions and visual cues that supplement verbal
o Facial expressions: insight on emotion
o Body language: level of interest
o Gestures: interpretative aid for context
 Non-verbal should be consistent with verbal
  Relaxed body stance
 Eye contact has great impact on listener
 Interpreting Non-Verbal Communication
o Aggressive
 Finger or foot tapping, staring, leaning forward, pointing, etc.
 Responsive
o Nodding, eye contact, smile, etc.
 Non-responsive
o Staring into space, slumping, doodling, frowning, etc.
o May signal an avoiding conflict style; may need to adjust approach

Written Communication:
 Ongoing need to communicate in writing to:
o Clients
o Opposing parties
o Other legal professionals
o The court
o Colleagues
o Staff
 Written communication in an ADR context includes:
o Legal memos
o Informal email discussions
o Required paperwork for mediation or arbitration
 Written communication within client files
o Comprehensive notes
 Written communication to others
o Relies solely on manifest content
o Be aware of your reading audience – write for your audience
o But, plain language movement
 Instead of bona fide say in good faith
 Instead of sine die say postponed indefinitely
 Instead of ultra vires say beyond jurisdiction
 Email communication
o Keep professional legal tone when communicating via email
o Some great tips on pg 58 of text – very helpful
 Appropriate subject line – helps you to find it in your inbox
 Start new email rather than forwarding or responding to really long chain
 Be conscious of how fast your email can be forwarded to someone else
 Professional email address
 Read at least twice before sending
 Use an email signature with all your contact information
 Preparing an ADR brief
o More formal the ADR process, more likely to prepare ADR brief
 o May need to prepare a Statement of Issues
o Relevant facts
o Overview of the law
o Expert reports, if applicable
o Write it in a persuasive, but reasonable way
o Suggest resolution
 Preparing settlement agreements
o Usually contains:
 a brief summary of what the parties have agreed to;
 terms;
 future expectations;
 confidentiality; and
 a release.
 Enforceable in contract law
Active Listening:
 Try to hear and understand what speaker says
 Support and encourage speaker to continue speaking
 Active Listening Techniques
o Minimal encouragers
o Paraphrasing
o Reframing – removes the negative language and replace with positive or neural
(helps to get your client forward thinking and away from blame)
 Instead of “you feel the deck was not built properly” say, “its important
to you to have a properly built deck” or “you are looking to see how you
can use the law to fix your deck”
o Suspending judgment or immediate response – instead of responding right
away, or thinking about what you are going to say, actually listen to what the
other person is saying

Strategies to enhance active listening:

 Choose a location that is quiet, private, has minimal distractions
 Give speaker your undivided attention
 Keep an open mind
 Focus on understanding what is being said
 Ask clarifying questions
 Empathize with speaker, try to imagine situation from their perspective

Obstacles to Effective Communication and Listening:

 Language barriers
o Seek out someone to act as an interpreter
 Selective listening
o Be clear with clients and follow up in writing
 Emotional content
 o Consider whether client should be present at settlement discussion
 Lack of preparation
o Meet with client and review file
o Prepare for ADR as you would prepare for trial
o Not acceptable to just show up and see what the other party has to say
 Unwillingness to discuss
o LSO Rules require an effort to settle every matter
o Try written communication if other side is unwilling
 Lack of urgency or deadline
o Impending trial is incentive for trying to resolve
o Real offers often don’t get presented until deadline approaches

Review Questions: Chapter 4

Teena is a co-owner of T&K Funeral Home. While she provides an important service to
people who have lost a loved one, she is still running a business and has to collect
outstanding accounts. She always dreads the initial phone call to the estate trustee to
discuss payment. Teena would like to resolve matters without hiring a lawyer or taking the
trustee to Small Claims Court.

1. Why is ADR a better option?

2. What should Teena keep in mind about communication?
What type of tone should she use when discussing the account?
If meeting in person, what does she need to keep in mind about her communication?
She deals with people who are emotional; how can she show them she is actively listening?