The Power of Perspectives

The Canadian Bar Association

Mariane Gravelle

Litigation

Settlement Counsel: an innovative strategy for managing commercial litigation files

By Mariane Gravelle January 3, 2018 3 January 2018

Settlement Counsel: an innovative strategy for managing commercial litigation files

 

In her recent Canadian Bar Review article, Michaela Keet discusses the use of Settlement Counsel (SC) in commercial litigation. While this method has known a measure of success, it is still quite unknown in Canada and the U.S. There is also very little academic literature about it.

Keet defines Settlement Counsel as “a negotiation structure that separates litigation and settlement roles – allowing for the simultaneous advancement of litigation and negotiation on parallel tracks, by different lawyers”:

Since most cases settle before trial, how they settle must be examined closely to explain the pockets of sudden and passionate interest in SC. Proponents of the model point out that litigation settlements typically occur after the investment of significant resources in the management of pre-trial litigation, without full and thoughtful exploration of client needs. They argue that SC files settle sooner with lower legal and internal business costs, even in consideration of SC fees. Proponents of the model also claim that the quality of SC outcomes are superior to litigation outcomes. Practitioners employ techniques to get earlier, relationship-oriented settlements in a commercial world where relationships are increasingly valued.

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Practice hub

What’s your EQ? How lawyers can use emotional intelligence

By Mariane Gravelle December 8, 2017 8 December 2017

What’s your EQ? How lawyers can use emotional intelligence

 

Martin is meeting with a client for the first time. The client has retained Martin to represent him in his divorce proceedings and is becoming increasingly upset as the meeting progresses. Martin now has difficulty eliciting responses to his questions and is becoming frustrated.

Catherine’s client is involved in a lawsuit. The parties have been negotiating an out-of-court settlement for weeks but repeatedly face obstacles. She is on her way to a meeting with the other party and worries they might not be receptive to her offer.

Uncertainty has reigned in Simon’s workplace since the announcement was made that his firm would merge with another. Simon is a senior partner and shoulders much of the responsibility for raising the team’s morale throughout this transition.

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CBA advocacy

The CBA intervention in TWU: Lessons from the U.S.

By Mariane Gravelle December 4, 2017 4 December 2017

The CBA intervention in TWU: Lessons from the U.S.

 

Hearings in the TWU case are now complete. On Friday, the Supreme Court of Canada heard submissions from over 25 interveners – including the Canadian Bar Association – and heard reply from the appellants and respondents.

Appearing on behalf of the Canadian Bar Association, Susan Ursel of Ursel Phillips Fellows Hopkins LLP presented the CBA’s factum and responded to questions from Justices Brown and Rowe. The CBA’s pro bono counsel also included David Grossman, Olga Redko, and Angela Westmacott (not present in the picture above). Ursel concluded the CBA’s intervention by re-iterating the CBA’s position that “there is a government interest in limiting long-standing discrimination against the LGBT community and while TWU has a right to its belief and covenant, it has no right to state support for same.”

In 2014, CBA members passed a resolution calling on law societies and government to require that admission to law schools be open, without discrimination related to any grounds under s. 15 of the Canadian Charter. The CBA has since intervened at appellate courts in Ontario and Nova Scotia, and has been asked to present arguments and law from the US experience.

Drawing upon that experience, the CBA’s submission states:

Examples from the U.S. jurisprudence illustrate that state actors’ refusal to grant benefits to institutions that maintain discriminatory admission policies can be legitimate even where those policies are characterized as manifestations of the freedoms of religion, expression and association. Particularly where benefits rather than prohibitions are at stake, freedom of religion in the U.S. can yield to a compelling state interest in protecting or vindicating competing fundamental rights such as equality.

Webcasts from both days of hearings have been archived and can be watched here.

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Supreme Court of Canada hears appeals in TWU

By Mariane Gravelle November 30, 2017 30 November 2017

Supreme Court of Canada hears appeals in TWU

 


The Supreme Court of Canada (SCC) held the first day of hearings in two concurrent appeals in the case of Trinity Western University’s proposed law school. The appeals, broadcast live here will continue tomorrow to determine whether the Law Societies of Upper Canada (LSUC) and British Columbia acted reasonably in refusing the accreditation of TWU’s proposed law school – a private institution. TWU Counsel Kevin Boonstra, in his opening argument, argued that the Canadian Charter “protects the right to establish communities of faith like TWU.  In order for any religious community to exist and thrive, it has to be able to define itself. In the evangelical context, this includes defining religiously appropriate conduct while individuals are part of the community."

Background

In 2014, three Canadian provinces – Nova Scotia, Ontario and British Columbia – refused accreditation to graduates of TWU’s proposed law school on the basis that a covenant that students were obligated to sign – which requires students to abstain from sexual relations outside of marriage between a man and a woman – was discriminatory towards the LGBTQ population.

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War crimes

Mladić’s genocide and war crimes conviction

By Mariane Gravelle November 23, 2017 23 November 2017

Mladić’s genocide and war crimes conviction

 

Former Commander of the Main Staff of the Bosnian Serb Army (VRS) Ratko Mladić, known as the “Butcher of Bosnia” has been convicted of one count of genocide and nine counts of crimes against humanity and violations of the laws or customs of war. The verdict, handed down by the International Criminal Tribunal for the Former Yugoslavia (ICTY), Trial Chamber I, carries a sentence of life imprisonment for Mladić.  Here is the statement from the ICTY:

Mladić was convicted of genocide and persecution, extermination, murder, and the inhumane act of forcible transfer in the area of Srebrenica in 1995; of persecution, extermination, murder, deportation and inhumane act of forcible transfer in municipalities throughout [Bosnia and Herzegovina, or “BiH”]; of murder, terror and unlawful attacks on civilians in Sarajevo; and of hostage-taking of UN personnel. He was acquitted of the charge of genocide in several municipalities in BiH in 1992.

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