A (Short) Guide to Canadian Anti-Spam Legislation for ADR Professionals

Canadian anti-spam legislationMany of us here in Canada have likely experienced an onslaught of “consent request” emails in the last few months. “In order to respect the new Canadian anti-spam legislation,” they say, “we ask you to confirm your consent.” The Canadian anti-spam legislation (CASL) comes into effect July 1st, 2014. So what exactly does this legislation entail, and what does “consent” mean in this context?

In an attempt to clear up some of the confusion, the ADR Institute offered a free webinar this week on the soon-to-be-implemented CASL. Led by corporate lawyer Ralph Kroman (WeirFoulds LLP), the webinar was a thoroughly insightful and understandable overview, taking specific care to address to concerns of ADR professionals.

The bad news? Mr. Kroman says that Canada’s new legislation is possibly the most draconian anti-spam legislation in the world. As opposed to American law, which only mandates that commercial emails have an “unsubscribe” mechanism, Canadian law will now require that individuals and organizations have the consent of all recipients of their commercial emails. The penalties for offenders are steep: the maximum penalty is $1 million per violation by an individual or $10 million per violation by an organization.

As a family mediator or other ADR professional, you may think that none of your emails would qualify as something that can be marked as “spam.” But under the new legislation, it’s not your intention as a sender that matters: it’s how the person whose inbox your email lands in receives it. What exactly constitutes a commercial electronic message (CEM)? Well, the definition is pretty broad: if your email can reasonably be determined to encourage the recipient to participate in any commercial activity, it can be spam. For instance, emails doing any of the following could be considered spam if sent without consent:

  • Offering mediation services
  • Announcing upcoming ADR training or courses
  • Promoting yourself as an ADR professional

The good news? There are ways to protect yourself and your business, and to adopt stronger email list management practices in the meantime. Before July 1st, sending a blanket consent request (yes, those emails we’ve all been inundated with) to obtain records of express consent is definitely a good idea, especially for those with large mailing lists. There requests must include the following information in order to comply with the legislation:

  • The option to give consent, and a clear statement that the recipient can later withdraw consent by unsubscribing
  • The purpose of obtaining consent (what types of emails they will receive if they consent)
  • For whom you are requesting consent (your organization’s name)
  • Your mailing address

After July 1st, any new additions to your mailing list should be given this information – and there must be a record of it. (Oral consent is only good if there is a recording!) For instance, email list sign-up sheets at conference booths should likely now have all of the above information clearly stated.

There can be some exemptions to the need for express consent. You can also choose to rely on implied consent based on past dealings for some of your subscribers, but this can prove a bit trickier. Consent can be implied due to business dealings when:

  • The recipient has made a purchase from you or been in a contract with you in the past 2 years: For instance, a mediation client or training participant who paid you or was in contract with you in the past 2 years may have implied their consent to received CEMs from you. But, a system likely needs to be in place to check your dates – it has to have been within 2 years of the date you send each CEM.
  • The recipient has made an inquiry or application in respect to business matters in last 6 months: For instance, someone who emails you to inquire about your ADR services may have implied their consent to receive CEMs from you for 6 months – but again, you need to keep track of the dates!
  • Business card exchange: If the recipient of a CEM has given you their business card AND the email content is relevant to their business, then consent can be implied. (But you need to have the business card for proof!)

This is not an exhaustive list of the exemptions under the act, but these are likely the most relevant to ADR professionals. Remember, that when relying on the implied consent of your subscribers, the onus will be on you as the CEM sender to prove it if there’s a complaint– so you may want to make sure your records are in order. And, there still needs to be the option for recipients who have implied consent to withdraw that consent by unsubscribing.

All this being said, it is unlikely that a sole practitioner or small ADR firm is going to be targeted, and especially with the maximum penalties. It’s probably safe to assume that the main purpose of the new legislation is to target senders of true “junk” mail – when the content of emails is not only irrelevant to your business and unsolicited, but has no unsubscribe option. Nonetheless, the safest course of action is likely to adopt practices that conform to the new laws. The bonus is, you know your email list is chock-full of subscribers who say they want to be there.

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Hilary Linton honoured with OBA ADR Award for Excellence

Hilary LintonRiverdale Mediation’s President and founder, Hilary Linton, is the recipient of the 2014 Ontario Bar Association’s ADR Award for Excellence.

Hilary is honoured to accept this award. Since she left her litigation partnership and began teaching and practising family mediation and arbitration 15 years ago, she has aimed to be leader in establishing the best practices in family law ADR.

“Being a mediator helped me realize how important it is for family law clients to have a safe, non-judging and balanced process of self-determination,” she says.

“Of critical importance in family law is a triage process called “screening”, where the mediator (and mediator-arbitrator) first meets the parties to identify, assess and manage the balance of negotiation and participation power and risk of harm coming to one of them, a child or the mediator.”

“Family mediators, lawyers and arbitrators can deliver better processes and help save lives by undertaking this important step,” she says.

Join us in congratulating Hilary at the award presentation reception and dinner hosted by the OBA Alternative Dispute Section on September 30, 2014 at 5:30 pm. Tickets for the event are available by email: registrations@oba.org.

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Peter Halls Named “Access to Justice All-Star” for Self-Represented Litigants

Peter Halls, Access to Justice All-Star for Self-Represented LitigantsFor self-represented litigants, the court process can prove to be an intimidating and overwhelming experience. That’s why resources like the Family Law Information Centre (FLIC), operated by our sister company, mediate393 inc., are so valuable for those attempting to navigate the system.

Peter Halls works as a Court Support Worker in the FLIC operated by mediate393 here at the Toronto Superior Court of Justice at 393 University Avenue. We would likely to warmly congratulate Peter for being named the newest “Access to Justice All-Star” by the National Self-Represented Litigants Project. Working with the Information Referral Coordinator on the front line, Peter is the first person self-represented litigants encounter when they enter the FLIC, and he is always glad to help with any questions or concerns about the Family Law process.

A wonderful profile of Peter has been posted on the NSRLP website – check it out!

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Ruminations from Across the Pond: Felicity Shedden on “Are we ready for Med-Arb?”

Felicity Shedden on med-arbIn February of this year, Riverdale Mediation was happy to welcome UK family lawyer Felicity Shedden as a guest in our practice. For a week, Felicity sat in on mediations and arbitrations, getting a feel for the ADR climate in Toronto.

Felicity has now authored a compelling article on her time in Toronto for The Review, a UK-based dispute resolution periodical. Entitled, “Are we ready for Med-Arb?”, Felicity’s piece is a thoughtful reflection on the growth of med-arb as a trusted ADR process in the Toronto context, and the hesitance of UK professionals to adopt this process.

Felicity notes that, for many ADR professionals across the pond, med-arb seems unviable. They ask: how can a single person act in two such different roles – that of both the mediator and the arbitrator? Felicity, on the other hand, seems thoroughly convinced of the utility of the med-arb process after her observations in Toronto. She writes,

“My answer to those people is that Med-Arb, at its best, really works. Clients like it. They get a single, streamlined, and efficient process. They have the opportunity for a self-determined outcome, but with the certainty of a conclusion one way or another, within a reasonable timescale and a flexible framework.”

Well said, Felicity! Here at Riverdale, mediation-arbitration is an increasingly popular dispute resolution mechanism for people whose disputes are ongoing and highly conflicted. We believe med-arb to be a good process choice for parties who want a private process that is tailored to meet their needs.

We are thrilled to have been featured in Felicity’s article, and to be able to demonstrate med-arb as a viable and desirable process for professionals working in different contexts.

You can follow Felicity on Twitter: @FShedden

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Training Update: Basic Family Negotiation & Mediation, May 2014

Basic Family Negotiation & Mediation ParticipantsWe finished off our spring session of accreditation courses last month with “Basic Family Negotiation & Mediation.” For 5 days during the first week of May, more than 20 aspiring mediators joined us for a dynamic and challenging course.

Instructors Hilary Linton, Elizabeth Hyde, and Christine Kim were hugely impressed by the breadth of knowledge and inquiry brought by the diverse participants.

Guest speakers Seema Jain, Richard Teicher, Cindy Dymond, Daniella Wald, and Joel Skapinker lent their expert opinions, alongside input from experienced mediation coaches. Through interactive discussions, case studies, and role plays, participants engaged in topics ranging from designing the mediation process, to including the voice of children, to mediating property support issues.Basic Family Negotiation & Mediation Participants

Our course participants were also impressed with the quality of the course: 85% rated the course as “excellent.” What they said:

  • “This course equipped me to design the mediation process, and gave me broader understanding of real world of mediation.” – Archana Medhekar
  • “Riverdale’s approach to mediation: fair, transparent, facilitative, thorough, intentional.” – Joelle Therriault
  • “Great course. You packed a lot in.” – Steve Benmor
  • “Best mediation course I have taken. A Cadillac product!” – Ed Pundyk

Basic Family Negotiation & Mediation ParticipantsOur next course for accreditation is “Screening for Family Violence, Abuse, and Power Imbalances, which is being offered October 7-9, 2014. Our full accreditation series will be offered again starting January of 2015. Thanks to all who contributed to successful spring session!

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Workshop on High Conflict and Power Imbalance Screening to follow National Family Law Conference

APFM Power Imbalance TrainingOn July 19-20, the Association of Professional Family Mediators (APFM) is offering a 2-day Advanced Training on “Power Imbalance in Family Mediation” in Seattle, Washington.

Riverdale Mediation’s President and founder, Hilary Linton, will
Reimer Linton Eddy Power Imbalance Trainingbe a trainer for the program alongside Claudette Reimer from the Barrie Mediation Centre, and Bill Eddy from San Diego. (This is the second time that Riverdale will be partnering with Bill Eddy this year: on June 2-3 we are offering a 2-day seminar on “New Ways for Mediation of High Conflict Disputes” with him in Toronto!)

The APFM program will include seminar presentations, demonstrations and mediation practice exercises. Topics will include:

  • Screening for power imbalances, including domestic violence, parenting interference and financial knowledge imbalances;
  • Designing protections for a safe and balanced mediation process; and
  • Managing the mediation with high-conflict participants.

There will be on-going opportunities for discussion and practice. With more difficult clients appearing in mediation and more court systems referring cases to mediation, these are skills we all need to strengthen.

For more information, contact Nancy Kaplan: nancy@cruinstitute.org or 425-829-6637.

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