Learning From “Building Planes in the Sky”

My heart goes out to everyone – because everyone is affected by the COVID19 pandemic in some way, personally, professionally, or both.

At the risk of seeming insensitive, this situation is both a tragedy and an opportunity. In terms of my work life, what is weighing most heavily on my mind is how we can use this opportunity to reimagine the family justice system and replace it with something new. As many have already pointed out (here and here for example), the COVID19 crisis is exposing significant structural deficiencies of Canada’s current justice system – the court system in particular.

As Rahm Emanuel [note 1] said:

You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.

On April 7th Ian Mulgrew reported that BC’s Attorney General sees opportunity:

Attorney General hopes modern legal system can rise from the ashes of pandemic … Attorney General David Eby reflects on BC’s crippled court system and the collapse of access to justice across the country as a result of the COVID-19 pandemic and finds a reason to hope. There are big challenges. He doesn’t have numbers or any modelling yet on the expected backlog in what were already clogged courtrooms. But he’s sure what doesn’t kill us, will make us stronger.

Jordan Furlong’s powerful series of blog posts highlights the seriousness of the challenges ahead and provides some excellent suggestions. [Note 2] Richard Susskind has identified five phases of the COVID19 recovery process. We are currently in “lockdown” but discussing what “emergence” looks like. John Lande differentiates between the current “crisis new normal” and the eventual “normal new normal”.

The challenges, of course, extend beyond access to and operation of the courts. It is also about people’s ability to access justice more broadly, including to identify that they have a legal problem and to find information and resources to solve those problems.

I found this one-minute YouTube video to be a humorous reminder that there are things we can do to come out the other end of this crisis in a better place.

Yes, change to the justice system should have been made a long time ago. But I suggest it is better to look forward rather than backwards and do our best to move ahead as quickly as possible. Whether we like it or not the post-COVID19 future will not look the same as the past. There is no going back to how it was, and we need to reimagine what it could look like. We can create something new that is designed to serve families (not just system insiders). And, as Jordan Furlong points out, we need to support the old while the new is being created – like building planes in the sky.

Time is not our friend in this challenge and there will be a powerful urge to try to recreate the past “business as usual”. We need to pay attention to the public’s new expectations of the system and to use what we have learned during this crisis.

Once the crisis is “over” (when we get to Susskind’s “equilibrium” stage) there will be a huge “backlog”. Usually people are using the word “backlog” to refer to court cases already in the existing system that were adjourned or delayed in some way and not resolved during the interim period. Add to that a second group i.e. the “usual” stream of new court cases that would have been coming into the system in the meantime even in the absence of COVID19.

Those two streams together will be daunting.

However, in addition to those two groups there is another pressure – the new types of complaints, conflicts, claims and cases arising from the COVID19 situation itself. In the civil area there will be a pretty long list – see Note 3.

This is even more daunting, if not overwhelming.

How can we deal with all three of these strands coming down the pike at the same time? Like the video, we need two concurrent streams:

1. Ongoing support for the existing system – with some immediate improvements; and
2. Determined steps to create and implement a new, transformed system and to support existing and new innovations / experiments.

In the first stream, we need to keep the big justice machine in service. Improvements to the existing system (including regulatory changes) were happening slowly, stalled by powerful barriers. COVID19 has spurred recent innovative changes, particularly in the court system including encouraging news from the BC Court of Appeal. Darin Thompson has suggested a recipe for efforts to improve court processes. The Michigan court system is another example of strategic pivoting. Frontline legal organizations across the country have been making herculean changes to ensure they can continue to serve the public.

In the second stream, there are some promising innovations/experiments but, in general, they have not been sufficiently funded or supported and development has been slow. Exceptions include BC’s Civil Resolution Tribunal which is continuing to serve users well, and the MyLawBC guided pathway.

The second stream is where we need to dedicate more time and resources. We can focus on collecting and analyzing data about what crisis innovations work (and which don’t) and build from there. Changes in this stream cannot be just about technology. Technology is just a tool to support the newly envisioned system. Instead, as Shannon Salter said so eloquently:

“I think the first step isn’t technological. It’s a change of mindset, away from serving institutions toward understanding the experience of the people who actually use the system”

Yes. Start with those for whom the system was designed to serve.

For family matters, court should not be the first step (or the default). Many believe that family disputes should not be in the courts at all. We need robust investment in out of court options including mediation, collaborative practice, parenting coordination and arbitration (to mention a few) as well as new technology tools and online options for information provision, pathfinding, referrals, advice and decision-making.

Although government is an essential partner in this type of ambitious change, it cannot do it alone. Justice is a complex system involving the public and a multitude of critical stakeholders and service providers. Complex system change requires a collaborative, multi-disciplinary approach that focuses on the needs and experience of those it serves (in this case – the family). This is “human-centred design” and is locally showcased and championed by organizations like the CRT, the BC Family Justice Innovation Lab and Access to Justice BC. A2JBC’s efforts to promote this approach are commendable but all organizations and individuals need to step up. We are in this together.

At the time of writing, here in BC we are still in the “lockdown” phase but planning for some form of emergence, which is encouraging. If we can muster the time and energy, now is the time to imagine the future and marshal some resources. It is also the time to pay attention to self-care and be grateful. I need to end by expressing my sincere thanks to all healthcare workers and frontline folks working to keep us safe. Stay safe and healthy.

__________________

Note 1: Often (but apparently inappropriately) attributed to Churchill during the Second World War. See also this helpful article by Tim Brodhead, (via Tamarack): https://www.tamarackcommunity.ca/library/not-letting-another-crisis-go-waste-tim-brodhead

Note 2: If you prefer podcasts, Jordan Furlong has provided excellent interviews for both Dr. Julie Macfarlane and by Darin Thompson.

Note 3:

• Employment claims
• All of the cascading problems that flow from loss of employment income including unpaid bills, unpaid debts, rent and mortgage arrears, family problems, mental health issues, increasing substance abuse, possible increased criminal activity
• Increased separation and divorce
• Increased child protection
• Bankruptcies
• Health-related claims
• Insurance claims (including travel insurance)
• Class actions against airlines for repayment of flight costs
• Domestic violence claims
• Human rights claims
• Legal issues and processes flowing from deaths (probate, inheritance, estate disputes)
• Commercial lease disputes
• Residential tenancy disputes
• Neighbour disputes (particularly in higher density areas)
• Privacy issues (including those arising out of online communication tools)
• Claims for COVID19-related government benefits
• What have I missed???…