As we struggle to fix access to justice, life goes on and people start to use other means to address their need for an efficient dispute resolution system. The rise of private systems of justice raises interesting questions of transparency, legitimacy, accountability and democracy. A recent book by Professor Trevor C.W. Farrow of Osgoode Hall Law School (Civil Justice, Privatization, and Democracy) is a comprehensive treatment of these issues. (An excerpt was published on slaw.ca earlier this year.)
The Rule of Law requires a system of justice that is characterized by openness, knowledge and accessibility. Professor Farrow’s thesis is that by privatizing significant sections of the adjudicative function we are systematically treading on key rule of law protections and are “at risk of impoverishing a significant aspect of the democratic process”.
The focus of this book is not limited to private commercial arbitration; it has a larger focus on all forms of alternative dispute resolution (ADR), including mandatory mediation and other types of informal resolution. In this column I will focus on Professor Farrow’s discussion of administrative tribunals. He focuses on tribunals that deal with significant public interest values and resources and raises some important questions about how tribunals balance their public interest role with mediation (usually conducted in private).
Professor Farrow is concerned that matters of significant public interest are resolved through ADR processes and receive little or no public scrutiny. He says:
… Although there are clearly important and persuasive efficiency-based justifications underlying various federal and provincial administrative-based privatizing initiatives, they do not … come without significant potential costs to both the dispute resolution and societal regulation purposes of public dispute resolution processes.
Professor Farrow notes that efficiency has become the underlying principle in many justice reform initiatives. And it is true that tribunals often focus exclusively on the numbers when looking at dispute resolution processes. Like many organizations, tribunals gather statistics: applications filed, applications resolved at mediation, the time it takes to get to a hearing, the length of the hearing and the time between the hearing and the release of the decision. In this way, dispute resolution is treated just like any other good or service. Peter Drucker’s quote, “what gets measured, gets managed”, has been used to justify such statistical performance measurements. What is often forgotten is the last part of the quote:
What gets measured gets managed – even when it’s pointless to measure and manage it, and even if it harms the purpose of the organisation to do so.
Farrow notes that much more than simply the resolution of disputes is at stake in a system of justice:
… process is fundamental to a viable and democratic public justice system. Arguments that focus purely on efficiency or purely on individual, one-off interests and results lose this overall societal perspective….. the fundamental and just regulation of society is also at stake.
Justice, and not efficiency, must be the endgame of the process. Of course, justice delayed is justice denied, and efficiency has an important supporting role to play in administering justice. That is why it’s always critical to look at efficiencies through fairness and justice lenses.
Of interest to tribunals are Professor Farrow’s views on how “high impact” public interest disputes ought to be handled. In his view, such cases should typically be subject to the scrutiny and rigour of a public (adversarial) Tribunal process and not an ADR process (such as mediation). He is also of the view that cases going to ADR “need to be very carefully considered to ensure that they are not being sent there for reasons of expediency or efficiency, notwithstanding that they engage important democratic functions of the law.” If such cases are settled through an ADR process, he believes the tribunal should use its retained jurisdiction to review the settlement as well as providing a summary “sunshine” report of the result. In addition, neutrals involved in such processes need to ensure that any settlements are consistent with justice-based public interest values.
In my experience, mediators at tribunals are very sensitive to power imbalances and do not facilitate settlements that are contrary to the public interest. In addition, however, mediators should be also cognizant of the importance of party autonomy. One of the important principles of mediation is that the parties, generally, are the best placed to design their own resolution of a dispute, especially if there is an ongoing relationship. A just resolution of a dispute can also be in the eye of the beholder. For example, a disputant may value a heartfelt apology more than thousands of dollars. And, as long as that party knows what his or her rights are under the law and has made an informed choice, without undue influence or pressure, how can a third-party say that is not a just resolution?
Some tribunals do conduct a review of settlements. For example, mediation at the Workplace Safety and Insurance Tribunal (WSIAT) requires that the Tribunal agree that the case is suitable for mediation and that any settlement be reviewed by a vice-chair. The review by the vice-chair results in a published decision which includes details of the settlement. It is important to note that all decisions of the WSIAT are anonymized. All mediated agreements must be consistent with the Workplace Safety and Insurance Act and Workplace Safety and Insurance Board policy. If the vice-chair is not satisfied with the settlement agreement, the case is referred to a hearing before a different vice-chair and that vice-chair is not given any information about the proposed settlement agreement.
Sometimes parties request that tribunals make their settlements a Tribunal Order (a “consent order”). This means that the parties’ settlement is public. Consent orders have the force of a tribunal decision and are also subject to judicial review.
Andrew Pinto in his recent report on the Ontario Human Rights Code made a similar observation to Professor Farrow’s about the public recording of human rights settlements. He emphasized the importance of data collected (on an anonymous basis) about settlements as a way of enhancing the profile of mediation as a viable means of resolving human rights disputes. He also noted that having information about mediation outcomes would assist self-represented parties, “who may not be aware of the types of resolutions that can be reached in a negotiated settlement”. In line with Professor Farrow’s concerns about transparency, Mr. Pinto writes:
As well, applications that involve egregious and blatant evidence of discrimination are often resolved at mediation. It is important for the public to be aware of these cases and their resolution, especially where significant settlements are obtained.
In disputes that are clearly defined (or that can be), recording settlement outcomes could result in valuable information for public accountability and transparency. However, in other less clearly defined disputes, where the parties are resolving a number of claims (or potential claims) in different fora (for example, human rights and unjust dismissal), the information could be misleading. In practice, mediators are generally well-positioned to provide generic information about terms of settlement, based on their knowledge of the jurisprudence as well as of other settlements. If mediators know that the goal is not settlement at any cost (as such a goal is contrary to the public interest), there exists some protection against unjust settlements. This raises interesting questions about the evaluation of mediators. As I have mentioned, tribunals can easily fall into the habit of measuring success only by statistics, such as settlement rates. As Simon Caulkin wrote in 2008: “[performance] measures set up incentives that drive people’s behaviour. And woe to the organisation when that behaviour is at odds with its purpose”.
Professor Farrow has written an important book for the ongoing dialogue on access to justice. I have only touched on a few aspects of his discussion in this column. For those interested in finding the right balance between of efficiency and justice, this is a recommended read.