Jonathan C. Yen

Jonathan C. Yen

HB.Sc., M.B.A., LL.B., LL.M., TEP, Q.Arb.

Mediator and Arbitrator

 

Disputes do not necessarily arise from differences in interpretation of facts, or misinterpretation or erroneous application of law to material facts, or a combination thereof. In many cases, disputes arise simply because parties are not satisfied with outcomes that do not reflect the disputing parties’ business needs, their business relationship, and in some cases, their political and or personal agenda.

 

In the traditional court dispute resolution process, disputing parties are forced to conform to established set of court rules and procedures. In alternative dispute resolution processes (mediator and arbitration), disputing parties participate in selecting or drafting rules, procedures, and resolution methodology that minimize interruption to their business or their personal lives.

My approach to alternative dispute resolution processes is to start with having conversations with counsel (if the disputing parties are represented by counsel). These conversations help me understand the disputing parties’ perspective on the cause of the dispute, guide me in drawing a road map to proceed with the resolution process, and give me a sense of the collegiality between counsel.

 

If the alternative dispute resolution process is mediation, the mediator, who is a neutral third party, assists the disputing parties in reaching a compromise (often referred to as a mediated settlement). The mediator has no authority to pronounce on a resolution. The disputing parties are in control of the resolution process and of the outcome. A resolution is only possible if the disputing parties are able to reach a compromise that, in many cases, involve satisfying their business needs, their business relationship, and in some cases, their political or personal agenda.

 

If the alternative dispute resolution process is arbitration, the arbitrator, who is a neutral third party, pronounces on a resolution in the form of an arbitral award. The arbitral award is based on the arbitrator’s application of principles of law to the material facts presented by counsel at the arbitration. The disputing parties are given the opportunity to select or draft the arbitration rules and procedures of the arbitration process, the time line, and terms and conditions, if any, that are peculiar to the disputing parties. Whether the arbitral award can be appealed depends on the terms of the agreement to arbitrate or the application of legislation that has jurisdiction over appeals of arbitral award.

 

I list below examples of negotiations that turned into de facto mediations. These examples illustrate the importance of taking into consideration issues outside of the constraints of the pleadings during settlement discussions.

 

  • Negotiated a settlement of a dispute amongst stakeholders in a business. Each disputing party was adamant on their version of the facts that allegedly support their position in the dispute. I was able to reach a settlement after I demonstrated to the disputing parties that in a court resolution process, neither of them would be better off. In fact, one of them would have been worst off, if principles of law were applied to the facts there can be supported by credible evidence before a court. Important factors in reaching settlement were discovery of facts taking into consideration the nationalities of the disputing parties and the accepted culture of the industry in which their business operated, knowledge of the law of evidence, and the applicable law on the material facts that gave rise to the dispute. Had this case been arbitrated, one disputing party would have been surprised by the arbitral award. There is a truth in the saying that something may seem simple, but in fact the details are complicated and likely to cause problems.

 

  • Negotiated a settlement of a property rights action that was before the Superior Court of Justice. During the review process, I discovered that many material facts of the disputes were, at best, circumstantial, and witnesses who can testify to the veracity of the material facts lack credibility. More importantly, I discovered that the quantum of monetary compensation was not a barrier to settlement. Settlement was reached when the disputing parties were able to include in the settlement elements that reflect idiosyncrasies of the nationalities and cultures of the disputing parties. Nationalities and cultures of disputing parties should not be dismissed outright.

 

  • Negotiated a settlement of an action that was before the Superior Court of Justice on allegation of appropriation of corporate opportunities. Notwithstanding that significant costs had been spent on the discovery of facts in support of the respective litigants’ legal position, I was able to reach a settlement by focusing on factors that motivated and satisfied the business needs of the disputing parties, their business relationship, and their political and personal agenda. In mediation, non-law factors often have influence on disputing parties reaching settlement.

 

  • Negotiated a settlement of a personal injury action. During negotiation, it became clear that the hurdle to settlement was the injured litigant’s need for certain amount of compensation for emotional energy spent on the litigation. It also became clear that the injured litigant, who is an intellectual, was not provided with rational reasons as to why the injured litigant’s request was denied despite an express request by the injured litigant for legal reasons for the denial. After the injured litigant was given reasons supported by case law, settlement was reached without prejudice to the injured litigant’s claim for compensatory injuries. The use of mediation gives the opportunity for a mediator to focus on issues that are important to disputing parties for purposes of furthering negotiation towards a mediated settlement. Had this case been arbitrated, depending on the rules and procedures agreed to by the disputing parties, the arbitrator might have been in a position to request counsel to provide additional information, if it is the view of the arbitrator that such additional information would be helpful in the drafting of an arbitral award.

 

Experience in resolution of disputes

 

I have acted as ad hoc arbitrator on matters before the Financial Services Commission of Ontario, as a mediator and arbitrator on commercial disputes; as defense counsel for insurers in claims against motor vehicle insurance policies and commercial insurance policies; and as counsel to individuals and corporations in negotiation, mediation, and arbitration in the resolution of disputes in the traditional court dispute resolution process and the alternative dispute resolution processes.

 

Experience as a business and commercial lawyer and strategist

 

My experience as a business and commercial lawyer, and a strategist includes: collaborated with communication consultants in the development, design and implementation of objectives, goals, guidelines, policies, and branding strategies in print and digital media; collaborated and worked closely with consultants in the development, design and implementation of strategies for fund raising for non-profit organizations; drafted, negotiated, and provided legal advice in numerous practice areas (commercial agreements for financial institutions, commercial leases confidentiality and privacy agreements, consulting agreements, documents securing funding, rights, and allocating of risks and rewards amongst stakeholders such as offering memorandum, documents needed to re-structure legal form of entities and ownership of business units to facilitate compliance with funding requirements or regulatory terms and conditions, documents needed to secure funding from private and public sectors as investors, partners, stakeholder, or a combination, employment agreements, franchise agreements, gifting agreements, information technology agreements, licensing agreements, master services agreements, sponsorship agreements, succession planning, and supplier agreements); developed funding strategies and proposals for commercial real estate development projects including formulation of cash flow projections and managed implementation of expenditures to comply with budgets and cash flow projections; developed and implemented corporate governance strategies; developed outsourcing strategies of Canadian manufacturing facilities; managed work flow of projects; and managed expectations of investors, partners and stakeholders.

 

Lecturer

 

I have lectured: at the Schulich School of Business, York University – Business Law and Policy (six semesters); at the Ontario bar admission program in business, taxation law, bankruptcy and insolvency law (over ten years); on numerous topics (estate planning for owners of small to medium sized enterprises, fiduciary duties of directors in public companies, how to obtain financing (traditional and venture capital) for new and existing businesses, legal traps in starting and operating small and medium sized enterprises, public listing and the Ontario Securities Commission, and taxation for owners of small to medium sized enterprises.

 

Publication

 

My publication includes “Legal Guide To Carrying On Business In Ontario”, co-author with practice partner (1991), Consolidation of Consumer Protection Statutes in Ontario, Editor, 1994-1997 (Canada Law Book), and various time sensitive articles for newsletters for local and community newspapers on business related issues.

 

Memberships (professional)

 

  • ADR Institute (Ontario)
  • Toronto Commercial Arbitration Society
  • Society of Tax and Estate Practitioners
  • American Bar Association (dispute resolution section)
  • Ontario Bar Association, Treasurer (2008-2010), Finance Committee, Chair, (2008-2010), Investment Committee, member (2008-2010)

 

Certification

 

  • Qualified Arbitrator awarded by ADRIC (Q.Arb.) [2018]
  • Tax and Estate Practitioner awarded by the Society of Tax and Estate Practitioners (TEP) [1990]

 

Education

 

  • London School of Economics, University of London, London, UK (LL.M.) [1989]
  • University of Toronto, Toronto, ON (LL.B.) [1987]
  • Schulich School of Business, York University, Toronto ON (M.B.A.) [1984]
  • University of Toronto, Toronto, ON (B.Sc. (Hon.)) [1980]

 

Languages (listed in the order of fluency)

 

  • English
  • Cantonese (fluent conversational)