Law Times

Law Times • December 8, 2008 FOCUS PAGE 9 Winkler Cup provides a 'learning experience' BY GLENN KAUTH Law Times t was a partnership that turned sour. After years of running a high-end baking business together, C.K. and Paul saw years of work building their reputations crumble. Paul allowed someone else to use the bakery to make a test batch of bagels, and it was during that time that health inspectors discovered rat droppings on the premises. They then threatened to close the place and issued a cleanup order, during which time the company's woes became public knowledge. As a result, the partnership was on the brink of collapse. "This dream has actually be- come a nightmare, and I think today I need some answers," C.K. said during a recent mediation session in an attempt to work out his differences with Paul. The mediation session was moot, it should be said, and both C.K. and Paul are actually law stu- dents at the University of Ottawa. Both, along with their mock law- yers who are also fellow students, were finalists who squared off against each other at the Cana- dian National Mediation Advo- cacy Competition held at Osgoode Hall in Toronto on Nov. 22. It saw teams from seven law schools — the University of British Columbia, University of Victoria, Osgoode Hall, University of Saskatchewan, Queen's, Dalhousie, and the Uni- versity of Ottawa — show off their mediation skills in a bid to win the Winkler Cup, named after Ontario Chief Justice Warren Winkler. The top team also received a trip to Paris for the 2009 International Chamber of Commerce Media- tion Advocacy Competition. The idea, say organizers, was to I provide a platform for students to practise a skill that's becoming in- creasingly important in the field. "Initially, it was out of a neces- sity to have law students engage in something that is practically mean- ingful for them," says Kileen Dagg Centurione, the competition direc- tor. "Alternative dispute resolution mechanisms are being used more Malach + Fidler LLP Mediation & Arbitration Services frequently and being viewed as one of the best ways to assist clients." The goal was also to give pro- spective lawyers exposure to the dy- namics between counsel and clients during a mediation session, an op- portunity Dagg Centurione finds they rarely get. "To date, there has been nothing in Canada to address that practical need," she says. The two competition judges, Toronto mediator Hilary Linton and Quebec Court of Appeal Jus- tice Louise Otis, scored the teams on seven criteria, including their ability to present the case effective- ly; the teamwork between client and counsel; their skill at problem solvin; creativity; and the lawyers' understanding of the clients' inter- ests. Most importantly, the judges watched for the competitors' abil- ity to respond to and adapt their approach to developments in the mediation process, as well as their ability to get information from and communicate with the other side. In C.K. and Paul's case, the mock session was supposedly their second crack at mediation follow- ing another dispute a few years ago. While both sides knew the general parameters of the conflict, each team had information that it could hold back or reveal depending on what happened during the session. C.K. hadn't yet disclosed that he was in dire financial straits and that one option for him would be to sell his share of the company to his business partner. Paul, meanwhile, had kept secret the fact that the person he had let use the bakery was in fact his brother-in-law. He worried that revealing that he had offered up the company's facilities as a favour to a family member would only weaken his position. From the beginning of the ses- sion, C.K. argued that his main concern was a loss of trust. "Your partnership was a shared commit- ment," he told Paul, adding that he worried that by allowing someone else to work at the bakery, Paul had broken a non-competition agree- ment the pair had. But Paul, who refrained at first from revealing the informa- tion about his brother-in-law, immediately apologized for his Some of the students from seven law schools square off in the Canadian National Mediation Advocacy Competition. actions, particularly the fact that they had led to the violation no- tice against the company. "I was disappointed to see that sign and in a way, I'm sorry," he said. Paul argued, however, that the real roadblock was a lack of com- munication between the two. "I wonder if we're both happy in what we're doing right now," he said. "The impression I get from you is that you're stressed all the time." Paul, whose expertise was in the culinary side of the business, said he himself was dissatisfied with the fact he has to spend more and more time on administrative tasks rather than using his skill in the bakery. "I think it's easy for Paul to understand your frustration, C.K., because I think he was similarly frustrated," piped in his lawyer, Sandy. But somehow, the session never got to the hard issues that C.K. was facing, particularly his dete- riorating financial circumstances. Instead, Paul and his lawyer were able to keep the focus on the emo- tional issues — the breakdown of trust, the job frustration, and the lack of communication — while gaining the upper hand by later ad- mitting what had happened with the brother-in-law. Paul even got C.K., who was reluctant at first, to consider investing in the brother- in-law's bagel business despite the fact that he was the source of the rat Trust [ A Fair Settlement Is No Accident Jon Fidler, C.Med. David Dempster 439 University Avenue Suit e 1401 Toronto, Ontario M5 G 1Y8 (416) 598-1667 (416) 598-5222 (fax) Stephen Malach,Q.C. Ivan Luxenberg 30 Wertheim Court Uni t 6 Richmond Hill, Ontario L4 B 1B9 (905) 889-1667 (905) 889-1139 (fax) e-mail: mediation@malach-fidler.com www.malach-fidler.com Untitled-1 1 www.lawtimesnews.com 11/25/08 8:46:47 AM David Payne | problem at the bakery in the first place. As a result, the pair agreed to continue the business while finding ways to fix the problems they had brought up during the mediation. In the end, Paul, played by André Schutten, and his lawyer Sandy, played by fellow University of Ottawa student Izabel Czuzoj- Shulman, won the competition and the trip to Paris. For his part, C.K., played by opposing Univer- sity of Ottawa team member Peter Quansah, says he and his team- mate Lisa Culbert could have done a few things differently. For one, he admits he could have been more aggressive, something he argues he shied away from after mediator Paul Monicatti began the session by appealing for civility. Quansah also says the team had considered offering to sell out to Paul but ac- knowledges the other side's tactics put a wrench in his strategy. "I think we got thrown off with the whole brother-in-law issue." Culbert, told the judges follow- ing the session that the circumstanc- es of her team's case left the pair in a difficult position, something that also forced Quansah to tone down his aggressiveness. "We really didn't want to go to litigation because of C.K.'s financial situation," she said. Paul, who had more money, had more leeway to walk away from the table, she noted. LT Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. Wendy Moore Johns | David Tenszen For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom

• Cover
• Stays On Bench
• Second Opinion
• Focus On ADR/Mediation