Law Times

Law Times • February 11, 2013 Page 7 COMMENt Tories hope latest crime laws will send public into their arms E very few months, the Conservative government stages another one of its crime days as it tries to scare us into running into their arms all over again. Their favourite theme used to be crime in the streets with all of those young people stealing cars, mugging old ladies, and using drugs. Actually, there are fewer crimes in our streets than ever and our communities are safer now than they've ever been. The teenage boogeyman has run its course. Now it's all about protecting the children. The new target is the dirty sexual predator. And if you fear for yourself or your children, the Conservatives hope you'll go running to them for protection and vote for them in the next election. If the crime rate ends up going down, as it has done for years since 1972, you'll have the Conservatives to thank and that's all fine and good by them. You can vote for them once again out of gratitude. This week, the star celebrity was Justice Minister Rob Nicholson. The last time it was Public Safety Minister Vic Toews, but he bungled things so badly with his legislation allowing police to snoop on Internet files any time they wanted without permission from judges that the government hung him out to dry. It quickly shelved his legislation. Even the name of it was a loser. Toews titled it the protecting children from Internet predators act. It was an appropriately of sex crimes will have to comscary title, but there was nothing victims money — in the law about either children The Hill pensatehave any.withcourse, not if they Of or predators. They might as well all of them are millionaires. have called it the police Internet The Conservative governsnooping act. That would have ment has doled out more than been more accurate. $1 million so far to victims' Now Nicholson is going to groups to help them and get save our kids from sexual predatheir advice. And the governtors. The government chose the ment will also increase jail topic — sex crimes against kids — Richard Cleroux terms for sex crimes and deal for maximum media coverage. with what it terms "the risks You just can't score any better for media attention, especially when you posed by known sex offenders." As a rebring in a recognized and credible real- sult, it will pay special attention to sex life sex crime victim, NHL player Sheldon criminals who leave jail after serving their Kennedy. He was the victim of a notorious time. So we might be going back to Toews' sex predator — his own hockey coach — ankle bracelet scheme again. No details were available during Nichwhen he was a junior player. In the meantime, the overall crime rate olson's performance last Monday. But who keeps going down year after year. But Nich- needs details? It's feelings we're going after. olson knows what he's doing. Sex crimes You folks out there feel for the victims, against children are one of the few areas that don't you? Yes, we do, Minister Nicholson! show an increase. Nicholson promises he'll Like all amateur performances, there put a stop to it for everyone's sake. It's a noble cause, but he forgot to talk are sometimes glitches. Theo Fleury, anabout prevention. If he paid more atten- other former NHL player also assaulted tion to prevention, he wouldn't have as by Kennedy's abuser, wasn't at Nicholson's many victims to worry about. More pre- show. Fleury went on Twitter asking if it vention means fewer crimes, and that in was all smoke and mirrors. He also picked up somebody else's turn means fewer victims. But fewer victweet that described Nicholson's show as tims mean fewer votes. When there's no crisis, there's no reason "all torque." That wasn't very nice, Theo. They won't to vote for somebody who can protect you be inviting you to sit alongside Nicholson from it. So Nicholson promises a victims' bill of if you keep that up. Conservatives truly believe that rights later this year. And the perpetrators incarceration works. That's why they're always dreaming up schemes to doublebunk prisoners, introduce more criminal offences, and increase sentences. Actually, incarceration has never worked at reducing crime rates anywhere in the western world. It has kept dangerous prisoners away from the public, but that's about all. Strangely, even though the crime rate in Canada keeps going down, the Conservative government believes the incarceration rate should go up. In fact, it has been going up since 2006. Now what happened back then that would lead us to that? The new mandatory minimum sentences are going to cost a fortune. So don't be surprised when you hear about new privately owned prisons. With harsh new laws against six marijuana plants in your basement, expect an increased demand for new prison cells. Nicholson, however, is a true believer in punishment. "The public loses faith in a system when it feels that the consequences of breaking the law are inadequate or that the punishment does not fit the crime," said Nicholson. The public, Mr. Nicholson, also loses faith in a government that cares more about punishment than prevention. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. In praise of mediation as risk-free alternative to litigation BY STEVEN GOLDMAN For Law Times T • Setting the ground rules: A mediator may want an initial conference call with the parties to discuss various logistics including the nature of the issues in dispute, the time and place of the mediation, who will be in attendance, the type of mediation statements required, and any pre-mediation issues. Mediation almost always begins with all parties meeting together in one room. The mediator then explains the mediation process to everyone present. Generally, each side makes an opening statement not longer than 15 or 20 minutes, but some mediators dispense with that and go straight into caucus mode. Once the mediation is underway, each party and its counsel meet to caucus in separate rooms. The mediator then comes in seeking to better understand the party's position and what it wishes to offer the other side. If it is an evaluative process, the mediator will typically provide feedback and then take the offer to the other side. There may also be information the party wishes to convey to the other side. The mediator will typically elicit a series of offers from both sides. Hopefully, as the day proceeds and more information comes out, the offers become closer. In the event the parties come to an agreement in principle during mediation, they need to memorialize their agreement in writing. The parties should not leave the mediation without signed minutes of settlement setting out the essential terms of the agreement. In an adversarial system that is prone to long delays, extensive legal fees, and court-imposed decision-making, mediation offers parties to a dispute the chance to resolve their issues in a manner that is quick, free of risk, and relatively inexpensive. While mediation does not always yield a successful settlement, the process nevertheless provides insight into the other party's case and the relative strengths and weaknesses of each side's position. At the very least, it moves the parties toward a range of possible resolutions. LT u SPEAKER'S CORNER he benefits of mediation far outweigh any disadvantages. Mediation is much less expensive than arbitration or litigation. There are no witnesses, discoveries or expert fees and none of the other costs associated with arbitration or litigation. As well, the process is totally confidential and conducted on a strictly without-prejudice basis. There are two general types of mediation practised in Ontario: facilitative and evaluative. In facilitative mediation, the mediator asks questions, validates, and normalizes the parties' points of view, and helps them find and analyze options for resolution. Facilitative mediators do not make settlement recommendations to the parties or provide their own opinion on the outcome of the dispute. In evaluative mediation, the mediator assists the parties in reaching a resolution by pointing out the weaknesses of their cases based upon both a legal and factual analysis and offers advice on what a judge or jury would likely do. An evaluative mediator might make formal or informal recommendations to the parties on the outcome of the issues or provide a suggested settlement amount. Most evaluative mediators are former judges or lawyers with a particular expertise in the area of business or law at issue. Most mediators use some facilitative and some evaluative techniques depending on their individual skills and predilections as well as the needs of a particular case. It is helpful to be clear with the mediator, in advance, about the preferred style of mediation for achieving the best negotiated outcome. The potential advantages of mediation include: • The flexibility to negotiate a settlement structure not available in a court judgment or arbitration award. This includes structuring the settlement in a tax advantageous manner, satisfying payments over time, providing security for payments, confidentiality, and "speak well" clauses. • Preserving the business relationships with minimal risk. • Providing each party with a peek at the opposing side's case without formal discovery. • A high chance of settlement. Statistics generally indicate a very high settlement rate in mediation. In the United States, for example, the CPR Institute for Dispute Resolution has reported success rates exceeding 80 per cent for its mediations. There are certain practical and strategic issues to consider prior to engaging in the actual mediation process: • Initiating the mediation: There is really no disadvantage to initiating the mediation process. • Selecting the mediator: Facilitative mediation requires someone experienced in the mediation and legal process generally but who isn't necessarily an expert in the subject matter of the dispute. If the parties want an evaluative mediation, it is important for the mediator to be an expert in the field of the dispute. Alternatively, a well-respected former judge, particularly one who presided over commercial disputes, can also be very effective and is generally a quick study. • Pre-mediation preparation: It is clearly advantageous for each side to prepare and deliver a reasonably thorough mediation or settlement brief setting out the issues in dispute, annexing key documents, and presenting a summary analysis of the applicable law and expectations of the party. • Determining who should be present at the mediation: Participants in the negotiations should include those who have the power or authority to make a decision and know and understand the issues in dispute. One commentator has noted that chief executive officers settle more cases than vice presidents, in-house counsel or other agents. • Developing the negotiation or settlement target strategy: A party should understand its settlement goals, consider creative solutions, and realistically quantify what its case is worth, including any interest and costs. It is also important to estimate a party's best and worst alternatives to a negotiated agreement. www.lawtimesnews.com Steven Goldman of Goldman Hine LLP acts as a mediator and arbitrator in franchise and other commercial disputes and has planned and implemented commercial reorganizations and restructurings. He is the former president and CEO of Speedy Auto Service and Minute Muffler in Canada.

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