In Dispute
All Things ADR for Ontario Lawyers
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December 2020 | Over It Edition
"The past is like using your rear-view mirror in the car. It's good to glance back and see how far you've come but if you stare too long you'll miss what's right in front of you."-Unknown
Year-End Message from Mitch

What a year 2020 has been?! For you. For me. All of us, personally and professionally.
 
That said, I am so grateful for what we as a profession achieved, despite the trials of 2020, including:
 
  • keeping pace with changes to the law, including civil procedure, estates, insurance, personal injury and real property, but especially employment law
  • helping others impacted by personal loss
  • adapting to business change, including getting up to speed on digital transformation, remote work, return to work (DYN “pivot” is 2020’s Marketing Word of the Year?)
  • mentoring students or organizations to teach dispute resolution or law techniques
  • conducting virtual mediations and arbitrations
  • holding virtual mediations on a variety of videoconference platforms (or hybrid mediations—part virtual, part in-person—when safe and practical to do so, to accommodate those who cannot participate remotely)
 
I look forward to what we will achieve together in 2021!
Are you satisfied? Survey says...!
Speaking of 2021, as part of my next year's planning, I want to look back at my first year of operation and seek feedback from you. Please watch for a Rose Dispute Resolution Client Satisfaction Survey. I promise it won't take more than a minute or two to complete but will go a long way enhancing how we support you and your clients. More on that soon!
Case Law Update
Be Careful When You Settle:
3 Caveat Cases for Counsel 

Caveat 1: Be Precise When Drafting Minutes and Quantify All Payments Received (and To Be Made)
In Kearns v. Canadian Tire Corporation, Limited, 2020 ONCA 709, the Court dismissed an appeal from the defendant employer seeking to set aside an order enforcing minutes of settlement. The minutes, which were entered into at a wrongful dismissal mediation, provided that the defendant was to pay the employee $150,000 “in addition to amounts already paid”. A dispute over the enforceability of the minutes ensued when the defendant later discovered that a payment had been mistakenly made to the plaintiff prior to the mediation. Finding that the minutes constituted contract, and there was no mistake or fraud to set it aside, Brown J.A. wrote:
 
Legislative Update
Virtual or In-Person?
If You Can’t Agree, the Rules of Civil Procedure Will Come to Your Rescue

Last year at this time, I had never conducted a virtual mediation by videoconference. To me, it seemed like when the future was calling on the Jetsons video phone! But since mid-March, all my mediations have been via videoconference, in whole or in part, and I've had to roll with the punches when a connection was lost or Zoom was down or even accommodate in-person mediation when required. (To this last point, I make available to you a helpful at-a-glance tool on the pros and cons of each method below.)
 
Personally, I have not encountered disputes over the method of attendance for mandatory mediations ...
SPECIAL HOLIDAY OFFER
(Limited Time Offer)
In the spirit of better serving our client community and settling disputes, starting December 1 through to January 29, 2021, Rose Dispute Resolution will donate* $50 CDN on behalf of each law firm (both sides) that books** a mediation.

*#DonateTO, City of Toronto's COVID-19 Relief and Recovery program
 **Mediation may be booked for 2021
See my website for rates and calendar and to book a mediation
As we close out 2020, our thoughts turn gratefully to those who made our first-year success possible. It is in this same spirit that we say thank you to you and your teams, and
best wishes for the holidays. Wishing you health and prosperity in 2021!

Mitch Rose and Sandra Pakosh
Your Rose Dispute Resolution Team
This newsletter and blog are for educational purposes only and are not intended as legal or other professional advice.
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