Misconceptions About ODR Beckoning the End of Lawyers

As mentioned in a previous post, a few weeks ago, the Montreal Cyberjustice Laboratory hosted a summer program aimed at demystifying the impacts of technology on conflict resolution in and out of the courtroom. Experts in the field shared their knowledge with approximately fifty students and professionals, all of who were hoping to get ahead of the curb as technology slowly creeps its way into courthouses. As researchers, we found great interest in the numerous questions raised by the students, as they awakened us to new topics that could be explored, as well as made us realize that some of the misconceptions about how technology will affect the legal system are not misconceptions at all, but rather a refusal to make the system better lest it make us lawyers irrelevant.

One of the seminars given during the weeklong class dealt with online dispute resolution and its advantages for solving high-volume, low-value cases or, as we like to refer to them, low-intensity cases. Almost instinctively, one of the students asked: won’t ODR affect lawyers’ possibility to bill and, therefore, their livelihoods? When asked to expand on his question he explained that he saw ODR as a menace to our bottom line and, therefore, as an evil that should be quashed (we’re obviously paraphrasing). This very quickly generated a debate among students as to the role of legal professionals within the legal system. This debate basically opposed those who believe that access to justice is the only true goal (and that if this is gained at the expense of lawyers, so be it), and those who cannot imagine a world without lawyers.

Obviously, we legal professionals have a vested interest in maintaining the status quo since it pays for our mortgages, but change doesn’t necessarily mean that lawyers will go the way of the dodo, but rather that we will need to adapt our skill set to offer legal services in a different manner. This is what those in the legal community who oppose ODR for monetary reasons don’t seem to understand; ODR does not threaten their bottom line, it offers them new possibilities for income.

Case in point: the Quebec Department of Justice’s pilot project for consumer mediation.

As most readers know, the small claims division of the Cour du Québec hears cases where the amount in dispute is no more than $7 000 (section 953 of the Code). Because the amount is so low, parties cannot be represented by counsel. This is not to say that individuals cannot consult a legal professional before going to trial (although statistics show few of them do), just that they have to handle their pleadings on their own. In other words, exceptions aside, lawyers are simply not allowed into the courtroom.

Now, with the advent of the new Code of Civil Procedure, which will come into effect later this year, the maximum amount one can sue for in front of the small claims division will go up to $15 000 (according to section 536 of the new Code). This implies that, although history doesn’t necessarily give credence to such a claim, the number of cases in front of the Cour du Québec’s civil chamber (where lawyers are allowed) should diminish, while the amount of cases in the small claim division should rise. The reason we state that history doesn’t necessarily give credence to this claim is that, as exposed by our colleague Pierre-Claude Lafond, since the last time ceilings were raised (in 2002, small claims caps went from $3 000 to $7 000), the number of cases brought forth before the small claims division has steadily declined.

That being said, this doesn’t change the fact that lawyers will no longer be able to plead in cases where the value in play is between $7 000 and $15 000. In other words, the new Code is technically taking money out of lawyers’ pockets (notwithstanding the fact that, in many of these cases, possible clients are often informed that it would be better to just bring their claim down to $7 000 and cut their losses since lawyer fees alone would eat up more than the extra $8 000 they stand to make).

Enter sections 28 and 830 of the new Code:

28. After considering the effects of the project on the rights of individuals and obtaining the agreement of the Chief Justice of Québec or the Chief Justice of the Superior Court or the Chief Judge of the Court of Québec, according to their jurisdiction, and after consulting the Barreau du Québec and, if applicable, the Chambre des notaires du Québec or the Chambre des huissiers de justice du Québec, the Minister of Justice, by regulation, may modify a rule of procedure, or introduce a new one, for a specified time not exceeding three years, for the purposes of a pilot project conducted in specified judicial districts.

830. The provisions of this Act come into force on the date or dates to be set by the Government, except article 28, which comes into force on the date of assent to this Act, in particular to allow the establishment of a pilot project on mandatory mediation for the recovery of small claims arising out of consumer contracts. [emphasis added]

This mandatory mediation for consumer contracts aims at decreasing caseloads for small claims division judges in order to offset the perceived hike of cases brought forth by raising the ceiling to $15 000, all the while increasing access to the courts for litigants, seeing as decreased caseloads should translate into decreased waiting times. It also has the side effect of increasing the demand for court appointed mediators, most of which are lawyers…

Therefore, this is a case where lawyers should embrace ADR in general and ODR in particular (the pilot project is expected to have an ODR component) since they are “losing” access to income they rarely went after (cases where the amount in play was less than $15 000) while gaining a recurring source of revenue in offering mediation services. Maybe the pilot project won’t have the desired outcome, but with the possibility for a lower caseload for judges, more access to justice for litigants, and new income sources for lawyers, why would we not root for it to succeed? In other words, ODR isn’t the enemy; it’s part of a series of tools at our disposal to modernize our profession and, therefore, stay relevant in a changing market.