After a lot of pondering, I have decided to share my personal experiences of trying to get access to justice – including, at one point, finding myself confronted with the nightmare of being a self-represented litigant – with Slaw readers.
My experiences are no worse than thousands and thousands of others of course, but I hope that hearing this from a system “insider” (law professor, mediator, scholar, and researcher) will have some impact. This blog is organized around three themes in my own A2J journey (in Canada and England, but with almost identical conditions and legal rules) that I believe are in common with thousands of Canadians (and others) who have felt disappointed by the justice system and the legal profession.
My story revolves around my past experiences of sexual abuse and violence, which I describe in my new book, “Going Public”. The book follows me from my early twenties on as I try to come to terms with those prior experiences, and how (and whether) to seek justice and redress.
In only one of these incidents – my sexual abuse as a teenager over the course of a year by my Anglican church minister – did I turn to the legal system. I pursued this perpetrator because I felt morally obligated to prevent him continuing to use his position of power and authority to abuse others, and because I was able to locate him, 30 plus years after the abuse occurred. Furthermore, he had an employer (the Anglican church) who was legally responsible for his actions. More on how this unfolded in a moment.
I never reported or took any steps against the other men who attacked me, and they almost certainly went on to assault other women and girls. Instead, to my shame, I adopted the alternative that so many people default to, even though they feel they may have a legal right to obtain redress: doing nothing. Many feel that it would just be too difficult to navigate a legal system without insider knowledge. In my case, I knew just enough about the system to convince me that throwing myself on its mercies to judge my credibility would be traumatizing and probably, ultimately, unsuccessful.
This is the first problem with our broken justice system, as the work of Ab Currie, Marc Galanter and others have shown. People with problems that the legal system was designed to address either do not recognize what their rights and remedies are, or they know vaguely what their rights might be, but accessing them feels impossibly overwhelming, emotionally and financially. So, they “lump it”.
What are the consequences of so many people “lumping it” and avoiding using the formal justice system? I hear innumerable heartbreaking stories of personal hardship and even tragedy, but it is the evidence I see everywhere of the resulting decline in public faith in our justice institutions that ought to be a call to action for all of us. The incredibly widespread “why bother?” attitude towards using the legal system (including many institutional complaint systems) undermines our work and our commitment as justice system professionals.
The Failure of Early Resolution
After an earlier attempt to utilise internal complaint systems (the Anglican church accepted his resignation after I submitted a formal complaint against the minister, but he just moved up the road to another church denomination in a new neighbourhood), I also discovered that he was just one of numerous clerics who committed abuse in the diocese I grew up in in England. I was therefore persuaded that the most effective way I could raise my voice about sexual violence was to bring a lawsuit against the Anglican Church, his employer when he abused me. This was not exactly an easy or intuitive decision for someone who has spent 30 years researching the toxic nature of litigation and the deficiencies of our legal processes, and working as a mediator. But I believed at the time that this would place pressure on the church, which would then negotiate a settlement with me.
I was so wrong about that. For almost two years (and two years as a litigant feels like about 20) I waited for the church to respond to my lawyer’s continued proposals that we talk. Nothing. Instead, the civil process creaked slowly forward.
Eventually the church did negotiate a settlement with me, but only after I wrote an article for the world newspaper of the Anglican church, published in the face of injunction threats from the church. The article called them out on their hypocrisy: their public expressions of remorse over clerical sexual abuse contrasted with their (and their insurer’s) actual treatment of survivors bringing claims forward. Immediately after the article was published, the church wanted to talk. The rest was relatively easy (the story of the negotiations is in my new book, and also in a chapter called “When Mediators Sue” that I wrote in “More Justice, More Peace” with my husband, Bernie Mayer).
This part of my story illustrates the second huge problem with Access to Justice in our current system. In my opinion this may be the biggest structural and systemic problem of all.
There is still huge resistance to resolution before litigation, despite the fact that this is what will eventually happen in over 95% of cases. That resistance is institutional (like the Anglican church’s, but there is no shortage of other examples), it is embedded in the culture and training of lawyers, and it is sustained and fed by the structure of adversarial adjudication.
Canadian courts and tribunals have seen numerous examples of programs trying to move the needle on early resolution, some with impressive results (for a recent example, see Victoria BC’s Early Resolution and Case Management Model). For example, when Ontario’s civil court-connected mediation program was still mandatory for most matters, settlement (full or partial) rates before discovery were at 44% (Macfarlane 1995, and see this 2015 meta-analysis by the DOJ). That program, like many others before it, is now a shadow of its former self, having been subjected to many forms of pushback from both the Bench and the Bar. The informal culture of early exploration of settlement has made some progress, as I describe in the first edition of The New Lawyer, but it is still not normative for many, many litigators.
In my own case, I effectively had to set my hair on fire before the other side would come to a settlement meeting. I know this is not unusual at all. The consequence is that negotiation and mediation mean very little to many litigants. They are kept largely uneducated and uninformed about how they might harness these processes to resolve their case. In my 2013 study I found that self-represented litigants usually could not remember being offered mediation, and did not seriously consider it, assuming they would be “rolled over” by a represented party on the other side. Fair enough. On the other hand, those who did use mediation were very positive about its benefits.
Unless and until we can find ways to make negotiation and mediation a) accessible and meaningful (which means a real systems effort to educate litigants, instead of punting this to the hard work of individual dedicated mediators and programs); b) credible as a fair process option, facilitated by well-trained third parties who do not pressure parties to agree; and c) perhaps mandatory with adequate protection for victims, we are never going to change these realities. Looking back over the 25 years I have been doing research in this area, the resistance of the Bar to early resolution has been remarkably effective (there is a lot more to be said about this, but I shall leave it at that).
Lack of Respect, Empathy, and Communication
Two further personal experiences have exposed me to the reality of being a defendant, and a criminal complainant.
Facing a lawsuit filed in Trinidad, I was for a while a self-represented litigant when my employer refused to defend me (at one point suggesting that since, “you know so much about self-represented litigants, you should be one.”). I tried to do my own research. It was very scary. Two of the lawyers I contacted refused to speak to me at all until I paid an upfront retainer (in one case, $10,000). Each was curt and rude, speaking down to me and dismissing my efforts to explain my predicament. I suddenly realized that I was now inhabiting the world I had studied through the eyes of clients for so many years – except that it was even worse than they had told me. I was rescued from this nightmare by a wonderful lawyer and advocate, Natalie MacDonald, but most SRLs do not have access to a former law student to help them.
As a criminal complainant (the minister who abused me was charged with multiple counts of indecent assault and is now in prison in the UK), I was treated with a lack of respect and understanding from the very beginning. I was given no information as the process moved forward at a glacial pace, nor any idea of what to expect. My increasingly insistent request to be kept informed on a regular basis was clearly not something the police, and later, prosecutors, expected. Eventually I found an officer whom I “coached” to communicate regularly with me, but this took a ridiculous amount of effort.
My cross-examination at two trials (the first a mistrial, the second ending in conviction) was miserable. I knew what to expect, but that was not because the prosecutor prepared me in any way. I first met her on the day of trial. She also found it impossible, apparently, to actually listen to me rather than to talk. She never once intervened to protect me when I was badgered with repeated questions about painfully graphic details of my abuse by defence counsel (whose favourite line, used multiple times, was “You just made that up, didn’t you Professor Macfarlane?”). It was left to the judge to finally close this down.
The lack of respect and understanding of victim trauma was astounding, almost a caricature. I was experiencing what some complainants call “the second assault”. Victims of crime are often victims a second time, literally and figuratively, when they participate in a police investigation and prosecution.
Meeting the Needs of People for Justice
These are just three of the many reasons why Canadians don’t feel they have Access to Justice. My personal story, along with the myriad of similar stories I have heard from others, informs my own determination to bring about change. I hope we as a profession and a society will find the courage and the moral strength to take up the challenges they present.
These systemic and cultural problems are fixable. But it will take more than writing reports and making speeches, and requires commitment to radical change at the highest level. It means putting the users of the system before those who make their livings at it.
Believe me, this is not an experience you would wish on your worst enemy.