Legal Profession in the 21st Century: Does It Include ADR?

Supreme Court of Canada Chief Justice Beverley McLachlin’s keynote address to the Canadian Bar Association’s 2015 Annual Meeting this summer looked at “The Legal Profession in the 21^st Century”. (Thanks to Malcom Mercer for posting the text of the Chief Justice’s address — and for the additional insights in his recent Slaw column “Innovate or be Innovated?”)

The Chief Justice talks about many challenges facing the legal profession today. She also talks about the challenge of access to justice. But, sadly, she gives little thought to the role of alternatives to court in addressing either of those challenges.

“The cry for access to justice is rising from what was once a dull murmer to a crescendo. Other actors – including courts and governments – bear much of the responsibility. But lawyers can be a big part of the solution. Everyone needs justice. Lawyers hold the key to exclusive domain called justice. But they open the doors only to a privileged few, the critics charge.”

…

“In the age of the Internet, people are questioning why they, the consumers of legal product, should be forced to go to expensive lawyers working in expensive office buildings located in expensive urban centres. …Why are simple disputes not resolved in simple, cost-effective mediation rather than by elaborate and expensive court proceedings? Public attitudes and demands are changing.”

This is the only reference to mediation in the Chief Justice’s remarks. There is no reference to arbitration. Nor to other methods of dispute resolution, such as restorative justice or collaborative law.

It is understandable, perhaps, that the view from the Supreme Court would focus on making the existing system more effective and affordable. And the Chief Justice’s topic was the future of the legal profession.

But I think it illustrates a view of the profession as adversarial advocates which is still widely held by the public and by the profession itself. It downplays the equally-important role of lawyers as problem-solvers who use their training and experience to work collaboratively to achieve positive solutions for their clients.

Access to justice is not just a question of cost. It is also a question of time – getting to court takes far too long – and a question of utility – all too often courts are simply unable to deliver the remedies parties are really seeking.

What good does it do to win a case in court if the judgement is not collectable, or fails to cover the legal costs to get there, or the “winner” goes broke in the meantime? And in many cases, the limited remedies a court can provide are not to most optimal solution for the parties. It’s a “lose-lose” situation.

Making lawyers better, cheaper adversaries will not solve these fundamental problems. Nor will the use of technology to make lawyers and courts more efficient. These things may be necessary, but they are not sufficient to address the issues the Chief Justice lays out so clearly.

“As servants of justice, lawyers have a duty to help solve the access to justice crisis that plagues our legal systems,” she says. “It is vital to the rule of law.”

To my mind, lawyers have a duty to their clients that goes beyond being zealous advocates. There is a broader duty to an individual’s personal, family or business interests. Or to the long-term interests of a business client. And to the public interest.

I think most lawyers recognize these duties and do their best to meet them. But we are often hampered by client expectations: “I want a lawyer who’s a bulldog. Someone who never gives up; never settles.”

We also face systemic problems.

In 2010, Ontario Chief Justice Warren Winkler (as he then was) offered “Some Reflections On Judicial Mediation: Reality Or Fantasy?” to the University of Western Ontario Faculty of Law. He said:

In Canada, mediation is no longer a matter of indifference to the public, the Bar and the Bench. To the contrary, mediation, including judicial mediation, is now considered by most to be an essential service that it ought to be embedded at long last within our civil justice system.

For the public, the issue, quite simply, is one of access to justice….

To the Bar, judicial mediation is an important ingredient in solving cases.

To the Bench, judicial mediation is a far more controversial subject. Some judges consider that it is inappropriate for them to engage in any form of mediation. They maintain that the judiciary is trained to decide cases, not to broker deals. Mediation, they say, requires them to descend “into an arena,” a place antithetical to judging. In increasing numbers, I believe, other judges feel that judicial mediation is now part of the lifeblood of an ever-evolving system of civil justice; we must have it to keep up with the changing needs and expectations of litigants. According to this view, to best serve the public, mediation must be an integral component of any modern and effective civil justice system.

Despite these forward-thinking views, we are five years on and Canadian courts and administrative tribunals still do little to encourage mediation or other alternatives.

In 2013, the Report of the Ontario Bar Association Judicial Mediation Taskforce, “A Different ‘Day in Court’ The Role of the Judiciary in Facilitating Settlements” found that, while each of the provinces had rules that provided for judicial role in mediation or other settlement processes, their practices varied widely.

“There are no fundamental aspects of JDR [Judicial Dispute Resolution] that are universal with the exception that where JDR is provided, it is judge-led and there is no fee. Different provinces deal with critical aspects differently…”

In some provinces participation is entirely voluntary. In others, the parties can be ordered to participate in a judicial settlement conference, as part of case management.

In Alberta, the rules require parties to participate in some form of ADR, which may involve a Court process, including JDR or private mediation. But the Court of Queen’s Bench suspended enforcement of the rule in 2013, due to lack of resources to handle the demand for JDR.

In Ontario, the mandatory mediation “pilot” – launched in three locations in 1999 – stalled there despite a generally positive assessment in 2001. Though there have been some tweaks over the years, there doesn’t seem to be any great desire to expand the program.

As the OBA Task Force concluded in 2013, “JDR is already a part of the litigation landscape in Ontario and has been for many years. However, it currently exists in the periphery of the system as it is not formally recognized in legislation or the Rules of Civil Procedure.” This leads to uncertainly about the process, limited availability of judicial resources, and insufficient time or incentives for mediation or meaningful settlement discussions.

“Overemphasis on trial door JDR also ignores the legitimate need for JDR at earlier stages of a lawsuit, before the parties have spent the resources necessary for trial preparation,” the Report said.

Little or nothing has changed in recent years.

In Britain, Hong Kong and other jurisdictions there are meaningful cost sanctions for failing to engage in mediation. That rarely happens in Canada.

As lawyers, we need to show clients that there are real practical benefits to engage in alternative forms of dispute resolution. The courts can encourage alternatives by providing more resources for judicial dispute resolution and by directing parties to private settlement or mediation.

Disputing parties benefit from being able to resolve their disputes more efficiently; members of the legal profession benefit from better serving their clients’ interests; and the public benefits by making courts more accessible to those who really need them.

Those principles, I think, must also guide the legal profession in the 21^st century.