Member Consultations

Court Facilitated Arbitration.

Operate a pilot project to encourage parties with cases lingering in the courts to consider moving to arbitration. Usually a party locked in the heat of a contentious dispute will recoil at a suggestion from the other side to consider moving to arbitration, fearing some tactical maneuver. An effective and efficient court mechanism is needed to (1) cause parties to consider seriously the advantages and disadvantage, (2) work out how their arbitration would work, and (3) settle specifics of moving. The answer likely lies in “Court-Facilitated Arbitration”. Moving to arbitration needs to remain voluntary. However, the process to get parties to explore moving to arbitration need not be entirely voluntary. Implementing a process for courts to assist parties to consider moving to arbitration is easy – use case management conferences.

To begin, a court identifies cases in which party interest in arbitration may exist. Then the parties and counsel are invited to attend a case management conference to consider moving. An experienced judge who understands arbitration, has strong mediation skills, and has a commitment to make Court-Facilitated Arbitration work would conduct the conference. Before the conference, the judge would become familiar with the dispute, its factual and legal issues, and its procedural situation. 

Parties should be required to attend so that there is a greater opportunity for parties’ true interests to surface.

When the parties are receptive to moving, the judge would assist them and their counsel develop a protocol for the move. If parties chose or like litigation because of certain of its features, as compared to arbitration, those court litigation features could be preserved in arbitration. Court litigation features could be the default position for the arbitration, with differences from arbitration’s ordinary features being subject to discussion.

Guided by an experienced judge who understands arbitration’s features and benefits, parties may elect to apply those features to their dispute. Topics that would be considered and agreed in the conference would include privacy / ponfidentiality;  judgment v. award; precedent; procedural and evidentiary rules;  costs; arbitral tribunal; appeals; other topics, such as the use of mediation and other forms of ADR, to take place before arbitration, running either concurrently or sequentially. 

Court-Facilitated Arbitration could be implemented under most existing court rules and practices, with minimal disruption to existing ways of doing things. The main cost of implementation would be a few hours of judicial time devoted to cases that otherwise will have lengthy waits for trial, and ultimately consume many days, if not weeks, of court time and resources. 

See my article in Canadian Lawyer last year describing this idea more fully:

https://www.canadianlawyermag.com/author/barry-leon/how-to-fix-court-delays-court-facilitated-arbitration-15355/?utm_term=How%20to%20fix%20court%20delays%3A%20court-facilitated%20arbitration&utm_campaign=CLNewswire_20180226&utm_content=email&utm_source=Act-On+Software&utm_medium=email&utm_term=How%20to%20fix%20court%20delays%3A%20court-facilitated%20arbitration&utm_campaign=CLNewswire_20180226&utm_content=email&utm_source=Act-On+Software&utm_medium=email 

Task Force on Self-Represented Litigants.

Establish a task force to consider innovative, cost-effective and fair ways to improve the situation surrounding self-represented (pro se) litigants in the courts – that is, to improve the situation for the self-represented litigant, the opposite party and the judge.

Possibly, the task force could be established in conjunction with other similarly situated jurisdictions that are interested in exploring innovative means for improvements. This would reduce the cost and possibly expand perspectives.

The task force could examine the most significant challenges from the perspectives of judges, self-represented litigants, and counsel/parties litigating opposite self-represented litigants, and the reasons for those challenges.

For example, are self-represented litigants unduly burdened by procedural complexities; by the challenge of presenting their evidence, by the challenge of cross-examining? Are self-represented litigants getting a genuine ‘fair shake’ from judges or do sometimes judges go through the motions but have an unconscious bias against the self-represented party, particularly if he/she is a difficult personality? Are parties opposite to self-represented parties being treated fairly by judges trying to assist the process of dealing with a self-represented party who is overwhelmed? Are there ways to reduce the pressures on judges in these kinds of cases?

Second, the task force could examine what is being done in other jurisdictions.

Among the things that could be examined is what is being done by the non-profit legal organization founded in the U.S. by Richard Posner (former U.S. Court of Appeals for the Seventh Circuit). Apparently in New York, pro se litigants can obtain assistance from court-appointed pro bono counsel for mediation and depositions and from the Southern District of New York’s Pro Se Intake Unit.

For example, one can think of a range of ideas that could be considered to guide self-represented litigants, perhaps made even more accessible as technology advances. 

Third, the task force could recommend pilot projects for our courts to test ideas, whether derived from other jurisdictions or from the thinking and consultations of the task force. 

1. If there was one change that you could make to the Ontario justice system that would have no cost, what would it be?

2. If there was one change that you could make to the Ontario justice system that would cost $10 million or less, what would it be?

Chief Justice Strathy has stated publicly: “The money spent on pro bono work in this province through Pro Bono Ontario is delivering more to provide access to justice - pound for pound, dollar for dollar - than any other kind of funding that can be found”.  The Government of Ontario should be investing in PBO's services which provide the Government of Ontario with substantial cost savings throughout Ontario as illustrated in PBO's return on investment study. An investment of only $500,000 annually will ensure that the services survive and continue to save the province money. A larger investment would allow services such as the Law Help Centres to operate in other large courthouses across the province. Without any civil legal aid funding, PBO's services have become essential. 

3. If there was an unlimited budget, what change would you make to the Ontario justice system?

1.    If there was one change that you could make to the Ontario justice system that would have no cost, what would it be?

We should change the rules to (i) require email service of searchable (PDF or Word) documents; and (ii) not permit service by fax unless previously agreed by the parties.  We should also only require the serving party to produce one set of paper material, and only if requested.

Email is cheap, effective and used by every lawyer.  Email service is more convenient and better for the environment.  Searchable (and cut and paste-able) documents are easier for the receiving party to work with. 

This rule change should not require the recipient to confirm receipt.  The rules should assume receipt when an email is sent, unless the receiving party raises an issue.

Faxes are like email, except worse in every conceivable way: they are (usually) not searchable, have poor image fidelity and require extra IT infrastructure.  No one should use faxes.

Bonus idea: a presumption that absent leave of the Court no motion is longer than a half day, and require facta for all motions.  Oral argument should be used to address questions from the Court raised in the briefing, not rehashing the briefing.  This will increase access to the Courts and reduce delay.

2.    If there was one change that you could make to the Ontario justice system that would cost $10 million or less, what would it be?

We should licence PACER from the Administrative Office of the United States Courts.  It’s the future now and we should have e-filling, service and dockets.  Anyone who has ever used PACER knows it is much better than our paper-service and -storage system.  In fact, it would preferable to change the names of Ontario court documents and steps to match what PACER uses (complaint, answer, brief, etc.) if it is cost prohibitive to customize PACER. 

3.    If there was an unlimited budget, what change would you make to the Ontario justice system?

We should give every Superior Court judge two clerks.  More clerks will allow judges to be more efficient, and accordingly increase the volume of work our Courts can handle, reducing delay.  It would also create more articling spots which, because we lacked the courage to get rid of articling, we require.