Category Archives: Access to Justice

Virtual Mediations and Arbitrations: The New Opportunities Presented to Disputants

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The new world of virtual court attendances, arbitrations, and mediations has now been our reality for well over one year. There is no reason to believe that this will not continue, regardless of our progress in reducing the impact of the coronavirus on the population. In fact, users of Ontario’s justice system have already been told that virtual court hearings will be the new normal.

This news is far from all bad. Actually, there are some very positive aspects to virtual litigation. This may be particularly true for parties to disputes seeking to either arbitrate or mediate their disputes.

Common to both arbitration and mediation is the fact that the parties select their own neutral. In the past, as a general rule, parties and their counsel were usually restricted to neutrals residing near locations where the parties lived or did business. This did not ordinarily represent a serious obstacle for parties located in highly populated areas. However, this posed a serious problem for those in smaller centres where there are fewer trained and qualified mediators and arbitrators. The only solution was to pay the additional expense involved in bringing in or going out of town to see the selected neutral.

Furthermore, in disputes involving highly technical fact patterns or complex legal principles, the search for a local qualified neutral is more complicated and far less likely to be fulfilled adequately.

In the virtual world, these restrictions do not exist. Parties are now able to locate and engage neutrals literally anywhere in the world. The restrictions of living or working in small markets no longer apply, as neutrals anywhere can be engaged at no additional cost. Where specific expertise, whether legal, factual, or scientific, is required, the availability of neutrals with such expertise opens up dramatically. For an arbitration matter involving a complex area of knowledge, it is now possible to engage a panel consisting of a trained arbitrator and industry experts, from wherever they happen to be located, and all without the burden of travel costs to bring such individuals together in a room for days, weeks, or more.
In the world of virtual mediation and arbitration, there are almost no limits to the extent that imaginative counsel can accommodate the needs of their clients at far less expense than before.

The experience of the pandemic has been brutally difficult for almost everyone, but here is one example of a silver lining that should be exploited where possible.

Some Thoughts and Observations by a Toronto Mediator

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In this post, rather than discussing a recent case, I thought it might be useful to provide observations on an aspect of the mediation process based on my training and recent experience conducting mediations in commercial disputes.  In particular, I would like to address the role of lawyers in managing their clients’ expressions of anger or high emotion.

Anger is almost an inevitable part of conflict.  A party believing his position to be right will likely believe the other side to be wrong and unreasonable in refusing to meet his demands.  As a result, parties in a mediation often blame each other and the resulting anger is one of the most commonly experienced emotions during a conflict.

One of the challenges for a mediator is to recognize the emotional states of the parties to the dispute, assess them in the context of the dispute and make an appropriate decision as to the circumstances under which each party is to be encouraged to express his or her emotions. At the very least, that analysis is critical to the decision as to whether to permit each party to vent or otherwise express emotion in the presence of the opposing party or merely in caucus.

One of the critical elements in the process has to do with the mediator’s own emotional self-awareness or emotional intelligence. Self-awareness will alert a mediator to feelings that might otherwise threaten his or her impartiality. Emotional self-regulation prevents these feelings from being expressed and acted upon in a manner that undermines the mediation.

A point that appears to receive little attention in the literature has to do with the importance of emotional intelligence of self-awareness among lawyers.

In a sense, the task of mastering one’s emotions is even more difficult for the lawyers than it is for mediators. Unlike the third party neutral mediator, each lawyer has been immersed in his client’s case, likely from the outset. The lawyer has been exposed primarily to his own client’s side the of the story, subject only to whatever documentary and oral discovery may have taken place by the time of the mediation. While any lawyer will recognize the importance of providing advice that is as objective as possible, the fact remains that many lawyers will, either deliberately or subconsciously, adopt their client’s cause as their own.  As a result, it may be more likely for the negotiations at mediation to give rise to emotional upset for the lawyer than for the mediator. This is particularly true if the lawyer for the opposing side is able to press the right triggers, for example by challenging the lawyer’s integrity, pride, ego, or skill level.  In that event, the need for lawyers to regulate their own emotions becomes even more important, but more difficult, than for the mediator.

Furthermore, unlike the mediator, a lawyer acting on behalf of an angry client in an emotionally charged dispute may find himself in a different predicament. Angry clients have a rather disturbing tendency to turn their anger upon their own lawyers, sometimes at the drop of a hat.  Whether that is a function of the often irrational behavior that characterizes angry outbursts and attitudes filled with blame and resentment is beyond the scope of this post.  However, most lawyers will have gone through this experience and may well have to confront it once again at or after mediation.  This will particularly be so if the mediation does not go well for the client, either because of hostility created by the opponent’s expressions of anger or for any other reason.

A lawyer confronted by his own angry client with attacks on his own integrity and threats to his own ego will have to manage his own emotions in order to respond appropriately and constructively.  This reality will represent a very real challenge.  A lawyer will approach the negotiation, presumably, with a view to obtaining the best result reasonably available to his client given the strengths and weaknesses of his case, the likely outcome and costs of trial, and the other usual considerations.  It may well be that this objective would be best served by permitting his client to express anger and high emotion, although presumably under controlled circumstances.  On the other hand, permitting a client free rein with his emotions may result in a backlash against the party’s own lawyer if the desired result is not achieved.  Furthermore, there are clients who seem to feel that their lawyer ought to share their anger, particularly if it is based in righteous indignation.  Lawyers who join in with their clients in expressing those sorts of sentiments may ingratiate themselves with their clients but, by doing so, will rarely contribute to the objective of settlement.

There is an additional reason why the need for lawyers to help regulate their clients’ conduct is even more significant than that of the mediator.  The mediator’s involvement in the matter will conclude at the end of the mediation whether the case has settled or not.  If the case has not settled, the action will proceed, the lawyer will continue to be involved, and the lawyer will next face the task of assisting the client to regulate his emotions when the matter reaches the courtroom.  In the courtroom, of course, the consequences of failure are far greater than they are at mediation, the atmosphere is likely to be even more emotionally charged, the need to regulate emotion is even higher, and the difficulty of doing so is even greater.

These observations are not just directed to lawyers.  A party involved in a mediation with a genuine interest in settlement will have to be able to “read” not only the opposing side but also his own lawyer, to be satisfied that the advice and guidance being provided is truly objective and dispassionate.

Legal Proceedings and the Middle Class

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In an article posted recently in the online version of Canadian Lawyer, Margaret Waddell put forward a proposal which she entitled “A Radical Idea for Giving the Average Person Their Day in Court”.

In her article, she suggested that asking whether or not the average person can afford a trial is the wrong question.  Instead, we should ask ourselves whether we can afford to maintain a judicial system that effectively bars the average person from being able to take his or her civil dispute to trial with the benefit of legal representation.

There is simply no question about the fact that the average person is going to have a lot of difficulty paying for a lawyer to take a matter to trial, assuming that by “average person”, we are talking about someone who earns at the level of Canada’s national income.

Litigation lawyers charge their time out at varying rates, generally dependent upon experience and, to some extent, geography. On balance, in my view, one gets what one pays for. That does not mean that a person will only be able to get proper or even adequate representation by paying top dollar.  I know many young litigation lawyers, including those at my own law firm, who can do an excellent job at a reasonably hourly rate.  My definition of “reasonable”, however, may not be shared by everyone.  Even young lawyers can be costly for average income earners.

For those whose incomes are below average but nowhere near the poverty line, the justice system approaches complete inaccessibility.  Family law courts in particular are inundated with cases where at least one of the two parties are unrepresented.  Where an unrepresented party must go into battle against a lawyer acting on the other side, the result can be devastating.  What may be even worse is that the unrepresented party will usually leave the courtroom without the first clue as to what just happened to him or her, or what he or she could have done prior to the hearing in order to increase the odds of success.

In smaller claims, an attempt has been made to address the point by increasing the Small Claims Court jurisdiction to $25,000.00.  The Small Claims Court is designed for people to be able to represent themselves without counsel.  While I do not have any statistics to offer, I have to believe that this has made a positive difference.

Ms. Waddell’s radical idea, incidentally, is that every lawyer ought to choose a case in which the client cannot afford to proceed and agree to act without charging a fee, or at a substantially reduced rate, or on a contingency.  By doing so, she suggests, the client can be shown that he or she is not a faceless commodity and that the legal profession is still prepared to help the average Canadian to obtain access to justice.

Ms. Waddell’s proposal is a laudable one but, I fear, unlikely to gain traction.  While many law firms would be prepared to consider acting without charge where doing so serves the public interest, or where humanitarian considerations exist, the idea of ignoring economic realities out of general principle is not likely to be viewed favourably by very many lawyers.

In my view, a better answer is to pursue the policy that gave rise to the increase in the Small Claims Court monetary jurisdiction by making it easier for people to represent themselves.  The first step to be taken in that process, as far as I am concerned, is to simplify the route which one must take to get to trial.

The need for simplification is nowhere clearer than in the family law context where, as I have indicated, many cases involve unrepresented parties.  Although I do not practice in the family law area, I have been present in Family Law Court and I have been astonished at the inability or the unwillingness of judges to take into account the fact that they are speaking to unrepresented litigants who are familiar with neither the procedure nor the jargon associated with court proceedings.  These are people who leave the courtroom completely mystified and, even worse, feeling as if they have no chance of ever receiving what they would consider to be their day in court.  I would bet that if the stakes were not so high, many would just give up.

I do not believe that lawyers are going to be increasing the number of pro bono cases they take on any time soon.  As Ms. Waddell points out and as many of us know, we do have a problem with access to justice.  In my view, the answer is to increase the opportunities for people to represent themselves where they choose to do so either because they cannot afford a lawyer or for any other reason.  This means, firstly, that the monetary jurisdiction of the Small Claims Court, with its enormously simplified procedures, should be increased even further.

Secondly, parties involved in disputes in that court should be expected to represent themselves.  Indeed, a party wishing to be represented by counsel should have to demonstrate a need for such representation by satisfying a judge, on motion, that the party is incapable of representing himself or herself.

Thirdly, and specifically with respect to parties involved in matrimonial disputes, the process must be simplified.  In that respect, I am not talking about even more steps designed to encourage or, as some might say, coerce parties into attending endless settlement conferences and discouraging them from ever actually entering into a courtroom to have a dispute resolved once and for all.  I am talking about simplifying the rules, eliminating unnecessary steps, and translating the rules into plain English so that people understand what they can expect in a courtroom, and what will be expected of them.