ADR in Action: Case Studies and Practical Problems

• Author: Andrew J. Pirie
• Profession: Faculty of Law. University of Victoria
• Pages: 343-378

343

CHAPTER 9

ADR IN ACTION:

CASE STUDIES AND

PRACTICAL PROBLEMS

A. INTRODUCTION

Although most people recognize a conflict when they see one, what

happens next is not always so clear. The process that conflicts take —

including whether one is raised or not, as well as the prevention, man-

agement, or resolution of conflicts in their disparate and unequal forms

— is a complicated affair. Rather than withdrawing from or ignoring

the challenges in this uneven, uncertain, and for some, terrifying, ter-

rain, the ADR theories and practices in the preceding pages can provide

a range of insights into what is going on and how best to respond.

For lawyers, ADR perspectives will be most helpful. When a lawyer

is retained to represent a client with disputing or problem-solving needs,

is asked to act as a mediator, or otherwise is concerned with a dispute

of some kind, the theory and practice of ADR will always be in play.

What is the cause of the conflict, the conflict styles of the parties and

the best alternative to a negotiated agreement (BATNA)? Is the prob-

lem an integrative or distributive one? Is this a case for mediation, arbi-

tration, early neutral evaluation, a mini-trial, or would it be best for the

client to walk away? What should be disclosed in a mandatory media-

tion session? Can you sue a mediator who has made a mistake? Who

should make the opening offer? What are the risks of boulwareism?

What should the mediator do when it appears the parties have reached

an impasse? Are the ADR goals right for my clients? ADR offers resources

to lawyers to answer these and other questions about disputing. The

344

ALTERNATIVE DISPUTE RESOLUTION

answers will be significant in shaping the ways in which lawyers,

regardless of area of practice, then go about their jobs. As ADR has

evolved into a full-fledged examination of all manner of disputing

developments — including how lawyers can contribute significantly to

constructive dispute resolution — the importance of the modern phe-

nomenon of ADR to the practice of law has become clear.

This chapter focuses on how ADR can be applied in a practical way

to real-life problems. In other words, how can the ADR theories and

references to ADR practices in this book help lawyers and others be

better dispute resolvers and effective problem solvers. Using two ADR

case studies and several disputing scenarios as examples,

1

the chapter

illustrates how an ADR analysis of a dispute can assist in deciding what

to do next in any dispute. Considering these cases from a practical

ADR vantage point also demonstrates the uncertainty and unpredict-

ability that infuse dispute resolution. What happens next in any dis-

pute depends on context. Part of that context is how ADR is used. The

decision to mediate as opposed to avoiding or arbitrating the dispute

may mean there will be a completely different outcome to the dispute.

The two case studies involve a major real estate transaction gone

sour and a landlord and tenant controversy. The case studies begin

with general facts that begin to disclose some of the context around the

particular dispute. As you read these facts, you can consider how you

might approach the problems presented from an ADR point of view.

The general facts are then followed by an analysis and advice section

drawing on references to the ADR ideas and practices contained in this

book. This section can be compared with your own analysis and advice

or used as a model for analyzing the six disputing scenarios following

the case studies or for examining other real-life disputes with which

you are familiar. What happens next is set out in the disputing devel-

opments section. This section may involve several different outcomes

depending on the ADR advice that is given or followed. Based on what

happens next — because different ADR actions can lead to different

results — there can be opportunities for more ADR analysis and

advice, followed by the final disputing developments.

The chapter concludes with general facts for six further disputing

scenarios. These additional problems can be used by readers, whether

student or practitioner, to complete their own ADR analysis and pro-

1 The actual case studies have been adapted from real disputes. To preserve

conf‌idences, names and details have been changed but in other respects these are

practical problems of a type that could easily come your way. The disputing

scenarios are f‌ictionalized accounts of what could be real-life situations.

ADR in Action: Case Studies and Practical Problems

345

vide their own ADR advice. This chapter shows how ADR in action

may actually work.

B. CASE STUDY ONE:

THE EXPANSIVE OCEAN VIEWS

1) General Facts

John is a forty-five-year-old chiropractor. His wife, Philippa (Pippa to

her friends) is thirty-five and is finishing her training to be a naturo-

path. John and Pippa have been married for five years and each hopes

their relationship (the second marriage for both) will be a lasting one.

They have no children yet but are planning to have a child within a

year or two at the latest.

John and Pippa had moved three years ago to a mostly rural area,

sixty kilometres away from the big city. John has worked hard to estab-

lish his practice in a small town that services the surrounding area. His

practice brings in approximately $140,000 gross per year. Pippa hopes

to join John in his practice shortly, although they both recognize that

balancing their jobs and a child will be demanding. The decision to

have the child took some time, primarily because John (who has a ten-

year-old daughter from another relationship) was anxious about becom-

ing a father again at his age. John and Pippa estimate they can together

comfortably earn $160,000 to $200,000 per annum. They both want

balanced lives. In fact, much of their professional work involves telling

people to get a better balance in their lives to stay healthy.

It was this interest in a balanced lifestyle that attracted them to the

fateful property in the first instance. One year ago and considering

their plans for a family, John and Pippa decided they would buy a

home. They began looking for a fixer-upper property with some poten-

tial to appreciate in value over time. They looked at several interesting

real estate listings but none caught their eye. While they were visiting

one property, their real estate agent advised them that a five-acre parcel

with expansive ocean views had just been listed. They went to the

property immediately. As they walked up a winding and somewhat

rundown pathway into the property, they saw the expansive ocean

views that unfolded like a painting in front of a tired but soundly built

rancher sitting on a rising ridge. It was love at first sight.

The five-acre parcel with the house needing work and the expan-

sive ocean views were exactly what they had been looking for. The

property was being sold by Nancy who had lived in the area for the