“Alternative Dispute Resolution in Canada
- United States Trade”
Notes for Remarks on a Panel on Legal and Regulatory
of the Canada - U.S. Free Trade Agreement
Jack R. Miller,
of the Bar of the Province of Quebec
and of the Law Society of Upper Canada
“Making the Most of the Canada - U.S. Free Trade
May 4, 1989
I - INTRODUCTION
am a practitioner specializing in the resolution
of conflicts and the settlement of disputes. My
experience includes a steady stream of trade law
disputes since 1969 when I took on my first anti-dumping
of my early cases concerned the relative merits
of American and Swiss circuit breakers when I cross-examined
one of the parties for 3 days on the design of its
circuit breaker. I felt I won my case in the cloakroom,
however, when during a break for lunch the Chairman
of the tribunal asked me as we were putting on our
coats if I really felt that the domestic design
was obsolete. Of course, I said “Yes”. Later, my
Swiss clients were exonerated of dumping duties
on the ground that customers had preferred their
was not however until 1982 that I became cognizant
of alternative dispute resolution, which was then
in its infancy, when I attended the Annual Lectures
of the Law Society of Upper Canada in order to keep
my Ontario call up to date and heard a paper by
Donald Brown and Peter Alley entitled “Management
of Corporate Disputes” which referred me to Roger
Fisher’s and William Ury’s Harvard Negotiation Project
publication “Getting to Yes”, subtitled “Negotiating
Agreement Without Giving In”. Since that date, I
have voraciously consumed whatever materials I could
find on the subject. I also began to apply it systematically
in my law practice. I was thus able to understand
where my clients were coming from and what they
wanted. I have tried to provide it, I think, with
I would like to offer to you today some of my insights
from this research, reflection and experience on
the potential for application of “ADR”, as this
approach has come to be nicknamed, in Canada-United
doing so, I would like to share with you a few observations
of an unlicensed psychologist concerning the dynamics
of conflict resolution and dispute settlement underlying
the dispute settlement mechanisms of the FTA which
have been expertly described by my co-panelists.
resolution and dispute settlement techniques have
broad applications since they apply not only to
putting things right when something goes wrong but
also to putting things together in the first place.
I believe that conflict is part of the human condition,
furnishing an opportunity for more productive relationships.
purpose is to stimulate and open up a wider view
and thereby to make a small contribution to enable
others to make the most of the Canada-U.S. Free
Trade Agreement. I feel that as a lawyer it is my
professional duty to make known to my clients the
full range of options available to them in respect
of their problem. I hasten to add that it is also
profitable to do so. And Vermonters and Quebecers
may have the opportunity to lead the way.
- Alternative Dispute Resolution
is customary to begin an introduction to a relatively
new subject by a reference to precedent and tradition.
Usually the reference is to the ancient Greeks;
it seems there is nothing that they had not conceived.
The purpose is to disarm the listener and lull him
into a state of mind reminiscent of Bobby McPerrin’s
hit song “Be Happy, Don’t Worry”.
I’ll give you the customary reassurance first. We
know that most people resolve their disputes themselves.
We know that a very high percentage of disputes
taken to court are resolved prior to a formal adjudication.
We know that there is abundant precedent and an
effective tradition of people themselves, often
with the assistance of third parties, finding alternatives
to formal adjudication.
the study of success is a method adopted by modern
social scientists to disengage from the mass those
elements responsible for success and put them in
a new culture where they can breed more success.
An example is the work of Fisher and Ury at Harvard.
People report on their work regularly at conferences
such as the recent National Conference on Conflict
Resolution and Dispute Settlement in Montreal. The
purpose of alternative dispute resolution is to
speed up and enrich those processes so that more
and better settlements occur earlier.
could say that any good attorney worth his salt
who survives the pressures of private practice regularly
engages in alternative dispute resolution without
being aware of it, like the person who didn’t realize
that he was engaging in prose when he was writing
something down. Alternative Dispute Resolution has
moved on to and up the agenda of both the Canadian
Bar Association and the American Bar Association
so that one could argue that ADR is in the mainstream
of the legal profession today.
American Bar Association has produced in my opinion
an excellent work on the subject entitled “Alternative
Dispute Resolution: An ADR Primer” which in a concise,
readable fashion summarizes the principal alternatives
and answers questions frequently
about ADR. The ABA Primer defines ADR as follows:
“ADR refers to a broad range of mechanisms and processes designed to assist
parties in resolving differences.
These alternative mechanisms are not intended
to supplant court adjudication, but rather to supplement
Primer then lists a number of ADR methods which
have some counterparts under the FTA dispute resolution
mechanisms described ably by my co-panelists. One
could argue that the FTA and the GATT dispute resolution
mechanisms are themselves ADR and one might refer
to them as “public international law ADR” since
the public authorities have a large part and the
processes are institutionalized.
I find the term “ADR” ambiguous. Even though it
is a handy and catchy reference, the term often
gives rise to much confusion. I prefer the term
‘conflict resolution and dispute settlement’. I like to think of it as a spectrum of approaches
measured by the degree to which parties themselves
resolve conflicts and disputes. At one end the parties
do it themselves. At the other end, someone does
it for them. In the middle, the parties do it themselves
with the support of others.
think of conflicts as something internal to a person
or to an institution and of disputes as something
involving two or more persons or institutions. The
goal of conflict resolution and dispute settlement
is not only to settle the dispute, i.e. patch things
up, but also to resolve conflict, i.e. get to the
bottom of things. In this context, I think of conflict
resolution as the equivalent of nuclear fusion in
terms of energy produced or released.
was the good news, the comforting and re-assuring
for the bad news.
All is not well and there is a need for innovation
to meet needs. This
is the challenging part, which sounds the retreat
W. Burton, who is associated with the Center for
Conflict Resolution at George Mason University in
Virginia, in his 1987 work “Resolving Deep-Rooted
Conflict - A Handbook” makes in my view a useful
distinction between what he calls “normal conflict”
which in his view, and I agree, lends itself to
intelligent management, and what he refers to as
“deep-rooted conflict” which in his view, and I
concur, calls for a more considered approach which
Mr. Burton labels “facilitated conflict resolution”.
Burton makes in my opinion an informative history
of conflict resolution which includes conflict resolution
at the international level and might well have been
the history of conflict resolution in Canada-U.S.
trade. For example, Mr. Burton notes that classically
at the international level “blatant power politics
was practiced”. The purpose of international charters
was to curb these practices, but essentially such
charters were still based on a power philosophy.
This approach has ignored in the view of Mr. Burton
basic needs and for this reason has proved of limited
modern approach is based upon the following realistic
understanding of the human condition:
“The awareness of needs which cannot be compromised, cannot be made subject
to some legal judgment, cannot be bargained, leads
logically to the development of a process that enables
parties to conflicts to ascertain the hidden data
of motivations and intentions and to explore means
by which common human-societal needs can be achieved.
As these needs of security, identity and
human development are universal, and because their
fulfillment is not dependent on limited resources,
it follows that conflict resolution with win-win
outcomes is possible.”
is really what ADR purports to address and what
makes ADR in my opinion one of the most exciting
technologies of all time. ADR is adisciplinary,
i.e. it pertains to no particular discipline but
rather to an interaction of disciplines, including
disciplines derived from lay experience since ADR
is not only a reform movement within the official
justice community of lawyers and judges but also
a grassroots intuitive phenomenon.
have found validation of my own intuition and experimentation
in the works of Mr. Burton and others. Recently,
I have been working on the grand-daddy of all deep-rooted
conflicts which also involve North American’s original
free traders who incidentally continue to assert
this right. I speak of the deep-rooted conflicts
between the aboriginal or indigenous peoples, in
particular the Iroquois Confederacy and their neighbours,
Americans and Canadians. I am hopeful that these
new approaches which sound in the traditions of
the native people will bring about some win-win
solutions for all concerned within a relatively
- The FTA Environment
FTA manages to mention competition and co-operation
in the same breath. It is not surprising therefore
to find that resolution of disputes is also a prime
objective. The FTA objectives aim both “to facilitate
conditions of fair competition within the free trade
area” and “to lay the foundation for further bilateral
and multilateral co-operation to expand and enhance
the benefits of this Agreement”. I guess this means
that it is O.K. for governments to co-operate but
not for industries. I suppose this is why the objectives
also seek “to establish effective procedures for
the resolution of disputes”.
my view, the emphasis will be on co-operation and
not on competition, because co-operation produces
more economic gain than competition. I feel that
anti-trust considerations can be covered by involving
all interested parties in the process and by the
transparency of the process. In any event, in my
view, anti-trust laws really sanction defects from
co-operation and not co-operation itself.
I would classify the main disputes that are likely
to arise in relation to the FTA as follows:
1.- the unfair pricing practice known as dumping,
which is really unco-operative behaviour, i.e. seeking
to maximize one’s own gain without regard for others;
2.- the distortions of governmental interventions
in the economy in the form of subsidies and other
measures - a co-operative equilibrium will be found;
3.- integrity of the FTA, such as respecting the
rules of origin, the classification systems, and
its intent and purpose; and
4.- elaboration of the agreement; various negotiations
and other initiatives and processes to reach a consensus
of greater specificity than the present.
I submit that the dispute settlement mechanisms
of the FTA require supplementary mechanisms if the
FTA is to achieve its potential. I think that the
official FTA mechanisms should be reserved for those
exceptional cases where the parties need more help,
even to the point of having a matter decided for
them. I think that parties come too soon to this
process for want of an alternative and I think that
too much is often asked or expected of the official
mechanisms. I predict feelings of frustration and
a receptiveness to alternatives.
my view, there is an eerie unreality to anti-dumping
and countervailing duty official procedures like
one was taking part in a ritual or a ceremony, dancing
around the problem. I sense that many of the disputes
under the FTA are likely to fall into the category
of deep-rooted conflicts. The FTA dispute resolution
mechanisms are flexible enough that they could in
time evolve into processes that meet the needs of
groups in society such as industry and consumers.
In this regard, pre-hearing administrative conferences
could evolve into facilitated conflict resolution.
I think in the short term the challenge falls to
the private sector to facilitate the resolution
of these deep-rooted conflicts by the groups themselves.
I think that when jobs and plants are at stake it
is not an exaggeration to feel in the presence of
needs which in the words of John Burton “cannot
be compromised, cannot be made subject to some legal
judgment, and cannot be bargained”.
the time that remains to me, I would like to outline
briefly some of the steps that Vermonters and Quebecers
might take to move towards filling this gap. Incidentally,
I feel that the same process will fill another need,
namely the need for assertiveness and autonomy.
I think we’ll see more joint ventures and fewer
acquisitions using this same approach, which will
prevent other disputes.
- Facilitating Conflict Resolution
it is important in my view that we focus more on
the dynamics of conflict resolution and dispute
settlement rather than on what I will call the form.
What is it in the process that leads to successful
resolution and settlements? I think that we have
to hunker down to where the action is. For instance,
trade is carried on by business and not by government
in North America. Moreover, the number of businesses
carrying on trade on a daily basis is not as large
as we might think. It is important to identify particular
individuals and institutions and to think in terms
of their interaction.
know that the workhorses of conflict resolution
and dispute settlement are (a) information exchange
and (b) listening and analysis. We know that emotions
are often determined by perceptions. Perceptions
are frequently a function of information. Distortions in perceptions can be corrected
by information. Fears can be released by information.
We know that resolutions and settlements are always
facilitated by exchange of information. Thus we
could focus on ways and means of facilitating an
exchange of accurate and relevant information in
a timely and appropriate manner.
know that listening is a great healer. Listening
validates and informs people. Listening empowers people. We want to empower
people. We want them to be freed of their fears
and be able to consider alternatives. People who
are defending themselves or who are attacking aren’t
listening. They miss much valuable information.
We want them to have the calm to be able to recognize
win-win solutions. Listening is an art and a science.
I believe that the work of Carl Rogers and others
has great potential for the resolution of disputes.
It is important to tap into it and apply it. In
the conventional hearing, a party is “heard” by
the tribunal. I think that it is important that
in the same manner each party “hears” the other.
Listening leads to a well-rounded analysis of the
entire situation which reveals inevitably a range
of options. Thus, we should set things up so as
to facilitate listening.
it is important in my view to promote and facilitate
an interaction between or among the parties to a
conflict or a dispute where the parties themselves
are the central characters and others are the supporting
cast. I think it is useful to think about ways and
means of getting parties together. It may even be
worthwhile to think about getting parties together
who are not in dispute but who have had disputes
in the past and are likely to have disputes again.
Sometimes more can be accomplished when the
interaction is not conditioned by a crisis.
this context, several random thoughts come to mind
which I hope are relevant though loosely connected.
Resolution and settlement work best when the situation
is cast as a common search for solutions which is
conducted from particular perspectives rather than
the classic adversarial stance. The physical arrangements
are important to achieve this effect. The interactive
method rather than the Rules of Order method of
meeting is more conducive to conflict resolution
and dispute settlement. Fisher & Ury stress
the importance of being soft on the people while
being hard on the issues. This formula sounds anodyne
and is anodyne but it also involves for many a radical
departure from convention.
thought: we know that there is a natural tendency
to disorder and we have to invest energy to bring
order out of disorder. I would like to quote from
Stephen Hawking “A Brief History of Time:
“It is a matter of common experience that disorder will tend to increase
if things are left to themselves. (One has only
to stop making repairs around the house to see that!)
One can create order out of disorder (for example,
one can paint the house), but that requires expenditure
of effort or energy and so decreases the amount
of ordered energy available.
A precise statement of this idea is known as the second law of thermodynamics.
It states that the entropy of an isolated system
always increases, and that when two systems are
joined together, the entropy of the combined system
is greater than the sum of the entropies of the
it is perhaps necessary to let go of a bit of order
in the form of established routine, allow a bit
of disorder in the form of parties sorting out a
format that works for them, and hope that a new
form of order would emerge in the guise of interaction
among parties in conflict so that conflict may be
resolved and the parties may make the most of the
Canada-U.S. Free Trade Agreement. There may be some
confusion, and we may feel uncomfortable, but let’s
empower the parties, anyway.
The Standing Committee on Dispute Resolution. Alternative
Dispute Resolution – An ADR Primer, 1987.
Axelrod, Robert. The Evolution of Cooperation. New York: Basic, 1984.
Brazil, Wayne D. Effective Approaches to Settlement: A Handbook
for Lawyers and Judges.
Prentice Hall Law & Business, 1988.
Burton, John W. Resolving Deep-Rooted Conflict - A Handbook.
University Press of America, 1987.
CPR Legal Program. ADR and
the Courts - A Manual for Judges and Lawyers.
Fisher, R. and Ury W. Getting
to Yes - Negotiating Agreement Without Giving In.
Hawking, Stephen W. A Brief
History of Time - From the Big Bang to Black Holes. Bantam Books, 1988.
Kohn, Alfie. No Contest - The Case Against Competition -
Why we lose in our race to win. Boston: Houghton
Mifflin Co., 1986.
Maine Law Review. Symposium - Alternative Dispute Resolution
in Canada-United States Trade Relations. Vol.
40, No. 2, 1988.
Percy, M.B. and Yoder, C. The Softwood
Lumber Dispute & Canada-U.S. Trade in Natural
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of Being. Boston:
Houghton Mifflin Co.,1980.