Introduction to Real Estate Disputes

Introduction to Real Estate Disputes

Tip: Before you sign a real estate contract, check to see if it has a Mediation Clause.

Real Estate touches most of our lives; buying your first home, dreaming of that 2nd home away from the the city, or downsizing after your children have started having their own kids. Dreams of opening that bakery after retirement and finding the perfect location on Main Street, only to discover the city use permit is no longer valid due to expired city permits.

Sometimes, what may have appeared as the perfect transaction, turns into a nightmare between buyers and sellers, landlord and tenants, or parties of interest such as you and the Home Owners Association. Disputes do occur in Real Estate, which can be costly, emotional, stressful, and most importantly, time consuming. Here are some examples.

Examples real estate conflicts:

1. The buyers purchased their Bay Area home. Within days of purchasing, a plumbing back-up causes damage. The problem was rooted in the sewer system, and the cost to repair included new sewer lines to be constructed from the street to the house. Unresolved for several months, it continued to back-up. The buyers went to an Attorney. 
2. The buyers alleged Non Disclosure - an accusation which the Sellers denied. The legal clock began to tick for all concerned. 
3. The homeowner purchased property with a Homeowners Association that offered well manicured lawns, lush landscaping and high-end homes. The agreement signed came with CCR'S (Covenants Conditions and Restrictions) requiring the purchaser to landscape the property. The new homeowner declined to landscape according to the Homeowner's Association. The Association had a duty to enforce the rules, so another legal battle ensued. 
4. The landlord and tenant fight over a security deposit over damages. Digging deeper, no one did a rental agreement or a walk thru prior to renting or moving out.

Alternative Dispute Resolution and Real Estate

When a dispute does occur in real estate, it is not the end of the world. In California, as within other jurisdictions, Alternative Dispute Resolution (ADR) is now playing a larger role to resolve these challenges as they arise.

Real Estate contracts written by the California Association of Realtors require that parties try mediation prior to a process of arbitration or litigation. Mediation can help parties with various types of real estate contracts, including buyers, sellers, landlords and tenants. In November, the California Association of Realtors formed a group of mediators specialized in real estate disputes to help resolve issues. The group, known as The Mediation Center, helps parties avoid unnecessarily long legal battles.

Mediation services offers many benefits. A conflict that might have lasted months or years can be resolved within a matter of hours. For example, a buyer and seller of the Bay Area had a conflict about tree roots going over each other's property. Four hours after the mediation commenced, the parties had a written settlement. Courts also support ADR via "small claims" or civil unlimited cases. One can gain information at the local Self Help Center or the Court clerk in each county in California. The Superior Court in Sonora of Tuolumne County also has a active mediation panel. Those members settle in excess of 80% of disputes. The disputants often leave the court happy, and rarely return.

Private mediation is another option for disputants.

Conclusion - Introduction to Real Estate Disputes

There is saying in the legal community; "Why litigate when you can mediate?" Be willing to resolve your dispute with mediation, which can often bring about a great many benefits, versus the the frustration and expense of litigation.

About the author - Real Estate Disputes

Jim W Hildreth, Mediator, focuses his practice on California Real Estate Disputes. He serves on multiple Superior Court rosters as a civil mediator and was appointed to the California Association of Realtors as a mediator. He serves the San Francisco Bay Area, Central Valley & Mother Lode. Contact Jim Hildreth and visit his site.

What is ADR?

What is ADR?

Alternative Dispute Resolution

Introduction to ADR

Popular television shows depict trials as the climatic event – an intellectual sparring of wit and strategy – and the whole dispute is over within an hour. In reality, legal disputes drag over months or years before a trial may take place. Preparation can be tedious and insipid, while 95% of lawsuits will settle and never even go to trial, which has led some lawyers to write about the phenomenon of the “Vanishing Trial”.[1]

Most lawsuits today are resolved through Alternative Dispute Resolution (ADR). ADR refers to various processes to resolve disputes outside of the formal public courts system. The main forms of ADR are negotiation, mediation, and arbitration, although there are also hybrid processes such as the minitrial, med-arb, and early neutral evaluation.

A Spectrum of ADR Options

ADR options are organized along a spectrum, from negotiation, which is the least formal process, to arbitration, which is the most formal process and therefore, the most similar to a trial. The more informal the process, the more control the parties have. In more formal processes such as arbitration, the parties have less control because the outcome is determined by a third party. Mediation falls somewhere in between. These processes are by no means mutually exclusive, and parties may pursue these options in sequence, or even at the same time.

Negotiation is the most informal process and has the fewest rules and procedures. Parties may negotiate directly with each other, or through their lawyers. Mediation involves a neutral third-party who does not impose a solution but helps the parties reach a resolution by facilitating more structured negotiations. The parties retain control over the final agreement. Arbitration is the most formal process where a third party adjudicator has the power to impose a binding solution on the parties after hearing each party’s position.

Key Differences Between ADR and the Traditional Trial

Trials are open, so all members of the public, including journalists, are welcome to attend (with a few exceptions in special cases). Furthermore, trial decisions are published and establish a precedent for future cases. In contrast, ADR is private and the result remains confidential between the parties.

The courts system is a formal process with rules of civil procedure and statutory deadlines. ADR is crafted to suit the needs and demands of the parties, and may take many different forms.

Trials are adversarial, where each party advocates that the law favours its position, and the judge ultimately rules in favour of one party. Although in ADR each party is seeking to maximize personal gains, the parties accomplish this through cooperation and compromise, rather than a winner-takes-all situation. Especially in non-adjudicative options such as mediation, “a mediator can often persuade the parties to resolve their dispute without determining which of their positions is ‘right’”. [2] Because ADR is less adversarial, it is better suited when parties want to continue their relationship beyond the present dispute.

Advantages of ADR

Some of the advantages that make ADR appealing are:

1.     Cost

The cost of a trial has made it prohibitive. In 1995, it cost each party over $40,000 in legal fees to go to trial, and in 2011, this estimate was close to $60,000.[3] This astronomical cost is out of reach for many people and even corporations, and is often disproportionate to the amount in dispute. Moreover, since the losing party is often required to pay part of the winning party’s legal fees on top of its own, this penalty serves as a looming risk and a deterrent for parties to go to trial.

The cost of resolving a dispute informally through ADR is much lower, and parties have more control over the process and the resulting legal fees. For smaller disputes, parties may choose less costly mediators, but select specialized mediators at a higher price for more complex disputes. A dispute over a $100 million may be resolved in a single day, negating the need to spend months of expensive preparation for a trial.

2.     Speed and efficiency

A backlog in the court system has meant when litigants request a trial date, they have to wait one or two years from that point, and even longer in some jurisdictions. Even after trial, parties may wait weeks or months for a decision to be released.

In contrast, a mediation or arbitration can be scheduled within a few months, and can be resolved fairly quickly. While courts usually discourage forum-shopping, which is choosing one court over another, ADR allows the parties to choose a decision-maker who best fits their schedule and needs. In mediation, the mediator does not make a decision, rather helping the parties come to a solution collaboratively. ADR may also remove the need for pre-trial procedures such as examinations-for-discovery and motions, which may be time-consuming and cause further delays. Instead, if there is a dispute about evidence or submissions, the parties may informally negotiate a mutually acceptable solution.

3.     Customizing the process

ADR is flexible to become whatever the parties agree to make of it. Parties may set their own procedures and decide which law applies. Most courts have judges who are generalists and must decide on cases ranging from criminal convictions to complex shareholder disputes – although there a few exceptions for Family Law Court or the Commercial List in Toronto. But in ADR, parties may choose a decision-maker who is a recognized expert in the area of the dispute.

Parties are free to use whichever form of ADR best matches their priorities. Parties may choose to air their grievances, or to never speak to each other except through a neutral third-party. They can choose whether their priority is to reconcile the parties in conflict or simply to reach a binding decision for the dispute at hand. Moreover, the parties can tailor the resolution to their own needs. Unlike court decisions, which often grant judgment in the form of a monetary payment, in ADR the parties have a greater range of options. Sometimes an aggrieved party may be simply seeking an apology or an acknowledgement that his/her actions were right. In other cases, one party may want to maintain the relationship while having a discrete issue addressed, which is easier to accomplish in an informal ADR atmosphere than in an adversarial process that pitches one party against another.

4.     Privacy and maintaining relationships

Another advantage of using ADR is that the situation giving rise to the dispute, the conflict resolution process, and the outcome all remain private and confidential between the parties and any decision maker. Typically, the decision-maker will require all participants to sign a confidentiality agreement. Privacy may be an important factor when there are claims that could significantly harm one party’s image and reputation, e.g. allegations of fraud, sexual harassment. With a private ADR resolution, the parties avoid being publicly convicted and may even agree to a no-fault settlement.

The ability to privately and quietly resolve a conflict allows parties to maintain their relationship if that is one of their goals.

When a Trial May be Preferable to ADR

ADR is not suitable for every legal dispute. Disputes involving the interpretation of a new statute or provision, the application of the Charter and Constitutional rights, and other public interest litigation require a public ruling to establish a precedent. Class actions may require litigation in order to ensure that all plaintiffs receive an equivalent remedy, rather than separate and inconsistent results. A trial is also preferable in situations where the defendant is being sanctioned, its conduct is condemned, and deterrence is a goal.[4] 

About the Author - What is ADR

Rhema - Legal Dispute Blogger

Rhema Kang is a litigation lawyer. She graduated with an Honours Bachelor of Arts from the University of Toronto in International Relations, and Juris Doctor from the University of Ottawa. She first became excited about mediation while working for the Honourable George W. Adams, a prominent Canadian mediator who handles legal disputes worth up to several hundred million dollars. Rhema was the researcher behind the book, Mediating Justice: Legal Dispute Negotiations, and won second prize in the FMC Negotiation Competition. Rhema enjoys dark chocolate with sea salt and finds it awkward to write about herself in the third person.

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[1] Robert M Ackerman, “Vanishing Trial, Vanishing Community? The Potential Effect of the Vanishing Trial on America’s Social Capital” (2006) J Disp Resol165.

[2] Frank E.A. Sander and Stephen B. Goldberg, “Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure” Negotiation Journal (1994) 49 at 56.

[3] George W. Adams, Mediating Justice: Legal Dispute Negotiations, 2d ed (Toronto: CCH Canadian Limited, 2011).

[4] Sander and Goldberg at 60.


 

Contract Negotiation Tips

Tips to Keep in Mind when Negotiating a Contract

Contracts are one of the most elementary components of our legal system.  They can be long, short, written, verbal, and contain a single sentence or a novel-worthy page count.  In essence, they are any type of agreement that describes a “this-for-that” exchange of rights, obligations, money or services.  Many contracts, like simple purchases or contracts for quick services or utilities, are non-negotiable.  However, even in those situations, there may be more room for negotiation than you think.  If you find yourself in the position of being able to discuss what your contract might entail, here are some basic tips to keep in mind when preparing for a negotiation.

Contract Negotiation Prep Work

You need to know what rights and obligations you’re actually talking about in order to have a hope of successful negotiation.  This stage is crucial.  Contractual terms and desired outcomes can change during the course of negotiation, but it will almost always be easier if you have the fundamentals laid out.  Ask yourself questions like the following:

What is the current state of affairs, and how will it change? 

This is a very important step, and, depending on the nature of the contract at hand, it can be easy to get ahead of yourself.  A careful period of self-reflection can be useful before proceeding.  Think about whether you have an ongoing relationship with the other party already, and whether you stand to gain or lose anything from negotiations or from entering a contract. Think about the other party’s relationship with other persons (both before and after you come to an agreement), and think about how entering into the contract will affect your own relationship with the other party (and third parties!). 

What must I receive from the other party? 

This is the bare minimum that you need to get out of forming the contract. Is it clear and obvious to both parties that this is what you need?

What is the most I am willing to give/pay/agree to perform?

This is something you can keep to yourself, but it’s still a good self-reflective tool to prepare yourself.  Think about your budget, time constraints, or the amount of time you may be willing to perform an obligation.

What specific objects/rights/obligations do I truly intend to form the basis of the contract?

Try not to assume things will just work themselves out. Be clear about your position, ask questions from the other side, and know what the scope of the rights and obligations might be.

Is my (or the other party’s) intended result even possible?

Sometimes, negotiations can carry on for some time before one side realizes a key piece of information that makes them realize that the intended effect just won’t work.  Clearly, in the interests of time, money, and efficiency, it pays to think about this question in advance. 

“What-if...?” Questions:

Hypothesize! For the sake of argument and analysis, ask yourself some “what-if” questions and see how the proposed contract follows through with the hypothetical.  Try to imagine what might happen if something fundamentally changes.  If it’s a lease, what if you want to move?  If it’s a job contract, what if you get sick?  This type of thinking leaves you better prepared to use hypothetical arguments as leverage, and can help you prepare answers for when the other party insists or asks for something.

At the Bargaining Table...

Once you have a handle on the issues from the first step, you may want to consider the following principles:

Don’t Overcomplicate

This can be particularly insidious with boilerplate contracts.  If the other party asks you to agree to something that doesn’t seem to apply to you, ask about it. If a term, clause or section serves only to confuse, consider removing it.  

Don’t Oversimplify

The counterpoint to the above is to make sure that your (and the other party’s) concerns are addressed adequately.  This is especially important as it relates to the hypotheticals that you have considered. 

Know the Definitions 

Many contract documents begin with an “interpretation” or “definitions” section.  It is typically crucial to understand what exactly various words in the document actually mean.  One of the implications of these sections is that you should probably not assume that a term that appears in the contract has the same meaning it might have outside the contract! 

Consider the Context

The context of your negotiations can be critical in ensuring that you obtain your desired outcome, or in protecting yourself from giving up too much for the sake of coming to an agreement.  Some of your “context” will undoubtedly come from your prep work (e.g. - knowing what a reasonable salary to expect might be, or what sort of common area expenses might be included in your lease).  Some of it may come from circumstance, such as a deadline or relationship with a third party.  Having a good grasp of the bigger picture will help a lot with timing your requests, demands, or refusals in negotiation.

Know When to Pause

Putting negotiations on hold can be a difficult judgment call, especially in time-sensitive scenarios.  But there are ample reasons when it may simply be better to wait.  More research may be required, the consent of a third party or client may be worth looking into.

Clarity is Key

Make sure the words on the page can only be read in the way the parties intend it to read! Ask yourself if there is a different possible interpretation. Consider making new defined terms rather than using a stock or official-sounding word.  Confirm with the other party that they get the same result when they try to interpret the meaning of specific terms.

Ask!

Communication is crucial in any negotiation setting.  Especially if one side has less bargaining power than the other, it is almost always helpful to ask questions, if only to confirm that what you think the contract means is correct.  If something seems to be missing, be explicit and ask for it! If it looks like the contract requires more of you than you were expecting, bring this up, too.  This is especially important when there is vagueness or ambiguity of terms.

Conclusions of Contract Negotiation

Contract negotiation can occur in a huge variety of settings, and knowing how to discuss and confirm terms is a worthwhile skill to be developed.  Remember that even if the other party suggests there is "no room" for negotiation, you still do not have to sign, and you can still ask questions. After you have read through these tips, then read about Negotiation Strategies and Tactics to better prepare.

These tips are intended to give some general tips for negotiation situations. If you feel overwhelmed, lost, or just in need of a bit of guidance for a specific situation, a great start is to seek out a lawyer, mediator or other counsellor who can give you professional help.  

About the Author - Contract Negotiation Tips

Dan - Mediate2go Editor and Blogger

Dan Lawlor is a Mediate to Go Blogger focused on estates and commercial dispute resolution. Dan is a graduate of McGill University's Faculty of Law with interests in conflict resolution, business law and writing. He played an important role as a director with Mediation at McGill, building connections with the community to improve outreach. Currently he is a student-at-law with Campbell Mihailovich Uggenti LLP in Hamilton, Ontario. Dan loves team sports, reading, and traveling.
 

Setting Boundaries to Resolve Conflict

Setting Boundaries to Resolve Conflict

Don't know where the future's headed

But nothing's gonna bring me down

Adam Lambert – No Boundaries

Introduction -  Setting boundaries to Resolve Conflict

Feeling Uncomfortable? Set a Boundary

Not too long ago, we wrote a blog about boundaries called Feeling Uncomfortable? Set a Boundary! This laid the foundation for better understanding how we manage the space between others and ourselves. We also introduced theory to explain tensions between being close and distant with others – tensions that are constantly in balance in all of our relationships. 

But what next? How to fix a relationship in relation to a boundary? How does one take this information and apply it within daily life?  How does one deal with or manage a conflict where a boundary is involved? Does every conflict involve some sort of boundary issue?

To start, we recommend being a self leader and taking responsibility in conflict situations. We wrote a blog about self leadership and conflict resolution, which discusses a model to help you feel powerful in relationships.

Common types of boundary violations

Someone around me is angry

It’s hard to not get caught up in someone else’s anger. Anger can come across as very aggressive, and can distract us from what we are doing or thinking. If the anger is from someone in public, and it is not directed towards you, escape from the situation. Remind yourself  there is nothing you can do, and get out of there. Now, if the anger is based on something that you might be  responsible for, you need to take a different approach. Look at our blog on dealing with anger and how to manage anger to learn more about this.

Someone around me is stressed

This is also a difficult emotion to deal with. Not only is it an emotion, it becomes a physiological response, which makes it even more challenging to manage. Someone else’s stress might easily become yours' within minutes or seconds if you do not stay focused  and reinforce your interpersonal boundaries with the person. If you want to improve your boundaries around someone who is stressed, feel free to tell the person that you are starting to feel stressed as a result of their stress. You can say something like,”I feel anxious that you were talking about that. I think everything will be fine.” Or, if you want to help that person deal with their stress, feel free to do so, but make sure that the person gets the help that they need. Also, it is important for you to have your own stress reduction strategy, whatever that looks like to you. Do you go to the gym regularly? Do you do yoga? How do you feel relaxed and what can you do you want a regular basis to reduce your level of stress overall?

Someone around me is offensive

If someone around you said something that you feel uncomfortable about, you can manage your response in several different ways based on your goals and the impact you’re looking to have in the situation. Is there way for you to can state your needs through having a constructive confrontation? This is often the best way of getting your message across, while making sure that you are not offending someone and escalating the conflict unnecessarily. Otherwise, it might even be appropriate to react based on your first instinct or feeling. If you do not think that you will be put in a dangerous situation as a result of your response, and your reputation will not be hurt, feel free to go with it.

Someone around me is jealous

Jealousy is pretty complicated and may require that someone in the situation must work on their confidence. Although you might want to set an obvious boundary with the other person, is important to try to be empathetic to their situation. This is not to say that you should do something that you are not comfortable with or take it lightly if someone wants to take revenge. However, your empathy can go a long way to help resolve a potential conflict. Remember, you are not responsible for their feelings. However, one of the best ways of getting out of the situation is by doing precisely that, get out of it.

Someone around me is in a conflict

Have you ever been around someone that is in conflict with someone else, and you inadvertently started to take on their view or feel the same way toward the other person? This is often part of a conflict escalation cycle, when people start to form groups as result of a conflict that becomes increasingly confusing and messy. It is hard to stay neutral in a conflict. One of the best ways to manage this boundary is by using conflict resolution skills. Even better, take leadership in the situation and help the person see things in a new way. Ask yourself if it is worth getting involved and hurting your own relationship with that other person for something that may or may not have happened. It takes two to tango, so if there is a conflict, both parties have probably contributed in some way. At the same time, gossip can be a good thing in particular situations. Think about these ideas and make the right decision for you.

                                                                                                                         

Conflict Resolution -Top 8 tips to resolve conflict

Conflict Resolution -Top 8 tips to resolve conflict

Conflict Resolution -Top 10 tips to resolve conflict from Mediate to Go

Introduction to Conflict Resolution

Man must evolve for all human conflict, a method which rejects revenge, aggression and retaliation. The foundation of such a method is love.
- Martin Luther King, Jr.

Definition of Conflict

What is conflict? Conflict means “discord of action, feeling, or effect; antagonism or opposition, as of interests or principles”, and an “incompatibility or interference, as of one idea, desire, event, or activity with another”  (Dictionary.com). Other words for conflict include collision and opposition. Conflict often leads to a great deal of pain, leaving people wanting inner peace.

Areas and levels of conflict

Conflict can take place in interpersonal relationships within the family and in the outside world, and at various other levels, including intrapersonal conflict (conflict within the self), departmental, organizational, community-based, regional-based, national and international conflicts.

Often, conflicts take place at varying levels at the same time. For example, you might have a conflict at work with a colleague, but at the same time, the organization, by failing to address the issue right away, creates a conflict between yourself and the organization. Here are some examples of levels of conflict in an organizational setting.

Conflict Escalation

The most challenging part of conflict relates to conflict escalation. Typically, conflict escalates between parties so that issues become bigger than necessary, parties become increasingly angry with one another, they focus on blaming each other and issues become increasingly complex and difficult to resolve. Even if parties want to fix the relationship, it becomes increasingly difficult.

Ways to address conflict. Formal vs. Informal (alternative dispute resolution)

In many areas of life, the traditional way of resolving an issue was to fight in court. Whether its divorce or a workplace dispute, parties would file a complaint or an action in court to address the issue. This type of approach, including labour arbitration, is adversarial, rights based and more formal. Parties ask a third party to make a decision, often leading to a win-lose situation. Read about the differences between mediation and arbitration. On the other hand, conflict resolution is now more about alternative dispute resolution, this means issues are addressed outside of formalized processes. Parties try to fix their relationship and resolve issues in a non-adversarial way, and only resort to a formal approach if the informal is unsuccessful.

Top 10 tips to resolve conflict

1. Don’t avoid the conflict. You might fear conflict and confrontation due to a fear of being rejected. Conflict can be positive for you, your relationships and your organization. Conflict can actually be good for business, leading to innovation. The key is to build your confidence to address the issue. Know that everything will work out.
2. Manage your anger. Take some time to breath, relax and reflect, if you feel you might explode. Ideally, you bring up your feelings immediately in the situation, if you feel safe. However, there is nothing wrong with finding the right time to discuss an issue. This can reduce the likelihood of escalation.
3. Reflect, don’t blame. We have the tendency to blame others. If you try hard, you can put yourself in the other’s shoes. What might they have felt in the situation? How would it have felt for them. It’s uncomfortable, but put time and effort into this.
4. Don’t stay if it’s a destructive relationship. Is the conflict reoccurring? Think about whether the conflict is destructive. Sometimes we stay in destructive relationships, but no matter the resolution, it will be short lived without addressing the deeper issues. If you can’t decide if you should divorce or not, read about how to choose between mediation and therapy.
5. Learn about negotiation and how to negotiate. Often, conflict resolution requires people to negotiate to ask what they are looking for.
6. Confront the person in a respectful way. We call this a constructive confrontation, where we prepare to discuss our concerns with someone in a respectful way, focusing on our feelings, not blaming the other.
7. Take leadership in the situation. Become a self-leader in conflict resolution. To be a self-leader, you need to be powerful. Follow our LEADER acronym to address issues effectively to resolve conflicts in your life.
8. Learn about conflict resolution and how to fix a relationship. Listen to our Top 10 songs about conflict to learn about typical types of conflict, and ways that people typically resolve issues.

Labour Arbitration

Labour Arbitration

Introduction to arbitration 

Arbitration is the most common method of resolving disputes in unionized workplaces, and is called for in collective agreements – the negotiated contract between employees (represented by their union) and employers.  

Arbitration vs mediation

Prior to an arbitration process, parties may attempt to resolve their issues via an informal workplace mediation process. Read about the differences between mediation and arbitration.

Arbitration clauses

These agreements almost always contain sections that call for a third party decision maker (arbitrator) to decide the outcome of unresolved disputes between the parties, so that every little disagreement does not end in a strike or a lock-out.  Where such a provision is not in a collective agreement, the law in most, if not all, jurisdictions in Canada mandates that a section requiring arbitration be deemed to be included in the agreement.  For example, in Ontario, if an agreement does not contain such a provision, the law requires that following clause be deemed to be a part of it:

“Where a difference arises between the parties relating to the interpretation, application or administration of this agreement, including any question as to whether a matter is arbitrable, or where an allegation is made that this agreement has been violated, either of the parties may after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to arbitration…”
 (Labour Relations Act, 1995, SO 1995, c 1, Sch A, s.48(2))

Grievances leading to arbitration

Where an individual employee or the union as a whole believes that the employer has violated the collective agreement, a “grievance” may be filed by the union.  The grievance will state what has been done wrong, and what the complainant believes the remedy should be if the grievance succeeds.  

Arbitration process

Where the dispute is not resolved once the employer has considered the grievance, and depending on the specific process laid out in the collective agreement, the issue will go before an arbitrator to resolve.  The arbitration process is similar to court, with one or more adjudicators hearing the case and determining the outcome.  The union and employer may have lawyers representing them.  The arbitrator(s) may be agreed upon by the parties, or may be appointed by the Minister for labour in that jurisdiction.  Evidence will be provided to the arbitrator(s) to consider, and witnesses will often be called.  

Arbitration proceedings

However, the proceedings are much more informal than in court.  An arbitration will often be held in a boardroom or office, and normal court rules are generally more lax.  An arbitrator will most often release his or her decision must faster than a court would.  Furthermore, given that the parties will likely have had a long history of bargaining together or of prior arbitrations, they may agree to certain aspects of the case without conflict so as to speed up the process, and ask the arbitrator to merely focus on one or more of the most contentious issues.

Binding decision

The decision of the arbitrator will be binding.  While the losing party may appeal the decision in court (called “judicial review”), labour arbitrators are given much leeway for their specialized knowledge in the field, and often the outcome of the arbitration will only be overturned if it is outside the scope of what could be considered a reasonable decision.

Conclusion about labour arbitration

Arbitrations in labour law are extremely common, and this method of dispute resolution has taken immense pressure off of the court system.  Most issues can be solved efficiently and cheaply in this way. 

About the blogger: workplace arbitration

Johanna Willows, Labour Law Blogger

Johanna Willows is a lawyer in Winnipeg, representing unions and individual employees. Johanna received her law degree from the University of Ottawa in 2013. She received several awards upon graduation for her work and extracurriculars in labour, employment, and human rights law, and was recently awarded the Manitoba Bar Association Pro Bono award. 

Super Powers - Being powerful and resolving conflict in relationships and organizations

Super Powers - Being powerful and resolving conflict in relationships and organizations

"I feel powerless" 
"I want more power and influence"
"I want to be respected"
"I am powerless" 
"I feel scared of asserting myself" 
"I avoid making eye contact"
"Someone embarrassed me at work, and I did nothing"
"We have a workplace bully"

A blog on power by a mediator and conflict coach

Mediate to Go - Super Powers - Being powerful in relationships and organizations

What does power mean to you? Do you feel comfortable using power? Maybe power makes you uncomfortable. Do you avoid eye contact with people? Do you hesitate when making requests of other people? Do you start some of your sentences with “I know this is a stupid question, but…”? Most people don’t realize this, but we exercise power on a daily basis. This blog is all about power in relationships. In order to be an effective self leader in conflict situations, we recommend the use of empowerment. Read more about power below.

Definition of Power

Power is defined as ”The ability to influence the attainment of goals sought by yourself or others.” (J. Dan Rothwell)

Other definitions of power include” the ability to do or act; great or marked ability to do our act; strength; might; force; legal ability, capacity, or authority; the possession of control or command over others; authority.” (Dictionary.com)

Synonyms for power

The items of power include the following: “capability; skill; dynamism; gift; talent; effectiveness; aptitude; efficacy; qualification; influence; potential; virtue.” (Thesaurus.com)

Antonyms for power

Antonyms of power include powerless, ”incapacity; weakness.” (Dictionary.com) “in aptitude; inefficiency; incompetence; uselessness; surrender; yielding; impairment.” (Thesaurus.com)

Introduction to power

In order to effectively resolve conflict,  and to be a self leader in conflict situations, one must learn how to manage their own power and interact with the power of other people. Power is all around us, and is not something that can be avoided. Even if one feels powerlessness, it is not possible to be completely powerless. 

Given our interdependence in human relationships and groups, everyone has some form of influence. (J. Dan Rothwell) That is a form of power. In fact, in order for people and groups to achieve their goals, they must exercise power. (J. Dan Rothwell)

Forms of power

Hollander and Offerman, (1990) explain that there are three forms of power;  dominance, prevention and empowerment.

Dominance

He who has great power should use it lightly.

Lucius Annaeus Seneca

Dominance is a form of competitive power, where someone’s gain is someone else’s loss. This type of power is most obvious in organizations or governments where are hierarchy is present.  Dominance can be exercised within given situations. Sometimes, dominance is Express verbally through interruptions, Contradicting someone else, berating them and monopolizing or dominating discussions. (J. Dan Rothwell)

Prevention

The only power you have is the word no.

Frances McDormand

Prevention is another form of power, which is also competitive in nature. Prevention Power takes place when someone is attempting to react to the power of dominance. Prevention power is common as a form of resistance. (J. Dan Rothwell) In the context of workplace conflict, if you’ve been a manager and your employees have resisted some form of change, this is known as prevention power. If you’ve been an employee, and someone has asked you to do something that goes against your values or the values of the organization, you may have exerted prevention power in managing this conflict.

Empowerment

The purpose of getting power is to be able to give it away.

Aneurin Bevan

Empowerment is much more positive out of all of these forms of power. Empowerment is all about helping others increase their capabilities and improving the influence of both groups and individuals. (J. Dan Rothwell) empowerment is all about collaboration: everyone in the group is given the tools they need to succeed together as a team. Empowerment is seen as a proactive means of helping oneself and others seek their goals. (J. Dan Rothwell)

Power games

Some people view power as a game. What is the power game? A power game is the interaction of dominance and prevention within different areas of life. As mediators and conflict coaches, we encourage people to seek empowerment, as empowerment is a form of collaborative power. We believe that through working together, people are more likely to have both of their needs and interests met.  This is not to say that we should not seek any form of power. Studies have shown that people using powerful language achieve credibility and are more persuasive than others. (J. Dan Rothwell)

Power in Communication

Passive Communication

Each underestimates her own power and overestimates the other's.

Deborah Tannen

Passive Communication means “not expressing genuine emotions, views, and values or sharing them with apologies, excessive justifications, and self-critical statements such that other people can discount what you think and feel. Passive communication conveys that your beliefs and emotions do not matter to others. The aim of passive communication is to avoid direct expression.” (U of New Hampshire) Powerless verbal communication is another term for passive communication.

In some ways, passive communication might be easier, as one might avoid taking responsibility for themselves and others. However, there are many problems and not asserting power in communication. Passive communication can create a great deal of resentment over the long term, as one might feel that they have compromised there needs to the benefit of someone else.

Assertive Communication

Respect your efforts, respect yourself. Self-respect leads to self-discipline. When you have both firmly under your belt, that's real power.

Clint Eastwood

Mediate to Go - Super Powers - Being powerful in relationships and organizations
Also, see our blog on being a Self-Leader in Conflict Situations

Assertive Communication means “Expressing thoughts, feelings and values directly, honestly, and respectfully. Assertive communication clearly conveys someone’s opinions and emotions and perspective. The goal of assertive communication is mutual acknowledgement and respect and compromise when there is disagreement.” (U of New Hampshire) If you are a self-leader and conflict situations, you are an assertive communicator.

There is a great deal of Power in assertive communication. Others some people might have a negative association to the term assertive, assertive communication is collaborative in nature. To be assertive is to be authentic and open about what you need, while respecting the boundaries of others, and wanting the best for them as well.

Aggressive Communication

Power is dangerous unless you have humility.

Richard J. Daley

Aggressive communication means “expressing opinions and emotions directly but dishonestly and/or disrespectfully. Aggressive communication conveys that what the other person wishes, feels and thinks is unimportant enough to be dismissed. The goal of aggressive communication is to win and dominate.” (U of New Hampshire)

Aggressive communication is all about competitive power and the power games. How can I win? What can I do to dominate the other person? How can I take revenge? Another problem with aggressive communication is that a “win” does not lead to positive relationships in the future. While one might feel that they’re powerful on the circumstances, this might backfire.

Conclusion

We have all heard the terms, power game, powerhouse and power up. For some,  especially passive communicators, asserting power is uncomfortable. For others, especially aggressive communicators, asserting power is almost too comfortable, given that it is at the expense of others. As mediators and conflict coaches, we recognize the importance of power in human relationships.

Power is not necessarily a bad thing. In fact, groups and their members required power in order to achieve their goals. How can groups achieve their goals and effectively manage conflict? The most appropriate form of power is empowerment, which is based on collaboration. The best way to achieve empowerment is through assertive communication.

Power and powerless quotes

Knowledge is power.

Francis Bacon

Satire is traditionally the weapon of the powerless against the powerful.

Molly Ivins

Washing one's hands of the conflict between the powerful and the powerless means to side with the powerful, not to be neutral.

Paulo Freire

We mostly feel fearful because we feel powerless. We feel powerless, I contend, because of a style of thinking that splits information in two poles that makes us lose all the operative information we need to solve the problem.

Patricia Sun

People who are powerless make an open theater of violence.

Don DeLillo

References

J. Dan Rothwell, In Mixed Company: Communicating in Small Groups and Teams, Thompson Wadsworth

The article by the U of New Hampshire was “Adapted from Lange & Jakubowsk (1978), as well as handouts from Missouri University of Science and Technology, University of Wisconsin Eau Claire, Massey University, and the University of Kansas.”