Tag Archives: mediation

Quick, Good, Cheap – Pick Two

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Her Honour Madam Rosalie Abella, a Justice of the Supreme Court of Canada, recently penned an opinion column in The Globe and Mail titled, “Our Civil Justice System needs to be Brought into the 21st Century” (subscription required). 

While I came to agree with Justice Abella’s conclusion, she actually made two arguments in order to get there.  And while I agree with her second argument, I cannot bring myself to agree with her first.

Her first argument is basically just “Change for change’s sake.”  She notes that the adversarial system of civil litigation we use today is pretty similar to the one used at the turn of the (last) century.  She then goes on to argue that, since the airplane and the Internet have been invented in that time, we should similarly change the way we resolve civil disputes. 

The flip side to the sentiment that “we should change with the times” is “if it ain’t broke, don’t fix it.”  And of course, our adversarial system of civil litigation has a lot of things to commend it.  It is a system which has been honed and refined over centuries and it does a fairly good job of serving its objectives.  While other systems of dispute resolution have been conceived and tried our adversarial system remains, to paraphrase Churchill, the worst system except for all the others which have been tried from time to time.  So I would disagree with the suggestion that we ought to make any substantial changes to our civil litigation system solely on the basis that it is an old system.  We should not tear down a fence unless we know why it was put up in the first place. 

That being said, Justice Abella’s second argument really lays bare the biggest shortcoming of our “least bad” system.  She persuasively argues that the system is just too inaccessible for regular people, for the dual reasons that (i) it is too expensive and (ii) it takes too long.  One cannot really disagree with her assertion that it should not take litigants “forever and thousands of dollars to decide where their children live, whether their employer should have fired them, or whether their accident was compensable.” 

The gap between reality and expectation for participants in the civil litigation system can be profound.  I blogged last week about an employment case in Ontario which took eleven (11) years to go from start to completion at the Court of Appeal.  By comparison, a few years ago I represented an employee in an employment case that was decided by the Court of Appeal eleven months after the employee was fired.  And do you know what they told me after it was over?  They said, “If I knew it would have taken this long, I never would have done it.”  And that was in a case which, by the usual standards, was resolved quickly.

In my own practice, I have seen a fair number of clients walk away from good, promising cases—cases worth tens or even hundreds of thousands of dollars—because they are not willing to wait 1, 2, or 3 years before seeing the inside of a courtroom, or because they are no longer willing to continue funding litigation which will go on for another 1, 2, or 3 years. 

The people who are most likely to be caught on the outside are those who can’t or won’t sink thousands of dollars, and years of their lives, into fighting a legal dispute – even though their case may be just.  Justice Abella perspicaciously identifies this problem when she says, “They want their day in court, not their years.”

Normally, this is where I would criticize the author for identifying the problem but not identifying any solutions.  But I can’t criticize Justice Abella here, because I don’t have any answers at the moment either.  The civil justice system serves multiple goals, among them efficiency, truth-seeking, and justice.  Major reforms to improve the outcomes in one area are almost certain to be at the expense of the other goals of the justice system.  The legal system finds itself stuck in the classic consumer quandary of “Quick, cheap, good – pick two”. 

What should we do?  Eliminate or severely curtail pre-trial discovery?  That would certainly get us to trial more efficiently.  It would also bring back the old days of “trial by ambush”, which the profession definitely wants to avoid.  Getting rid of “trial by ambush” was a major reason for the significant expansion of pre-trial discovery in the first place.  We can make our civil litigation system quicker and cheaper, but it won’t be as good.

While I can’t say what we should do, I can make a suggestion about what we should not do.  We should not do mandatory mediation.

In my opinion, the experiment of mandatory mediation is a failure and should be abandoned.  For a number of years now, any civil lawsuit in Ottawa, Toronto, or Windsor has been required to go to mandatory mediation as a necessary pre-condition to going to trial.  And why is this such a bad a idea?  Simply put, if you want to make the process of a lawsuit quicker and cheaper, you should not add additional procedural hurdles to the lawsuit.  Mandatory mediation adds both time and expense and makes the overall lawsuit take even longer.  I cannot understand why anyone thought that the system would be made more efficient by adding an extra step to civil lawsuits: it is impossible to make a journey quicker by adding pit stops.  If we want to make the process of civil lawsuit a little bit quicker and a little bit less expensive without sacrificing quality, we can start by eliminating the costly and time-consuming step of mandatory mediation.

Litigation Lessons from the Tiger King

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The “Tiger King” documentary is one of the most outrageous things ever produced for television and it has served up no shortage of talking points.  Buried under the many, many, many layers of intrigue are a couple of interesting observations for the world of civil litigation. 

A civil lawsuit can be a long, expensive, and laborious process, and the courts have taken steps to expedite the process of civil litigation where possible.  In particular, they have encouraged a much greater use of the mechanism of summary judgment.  In summary judgment, a case will come before the Court on a motion, rather than on a full trial, and the judge will make a ruling based on the materials before the Court, which will usually consist of predominantly or solely written materials.  On summary judgment witnesses are usually not called to testify in court, having previously given their testimony in the form of a written affidavit.  Not having live witness testimony greatly reduces the amount of time spent in court and can significantly streamline the process. 

We tend to think that this is a good thing and, overwhelmingly, it is.  There is an old saying in law that “justice delayed is justice denied”, and summary judgment is a powerful tool for fighting the delay that the court system seems to be so well known for.  Summary judgment is popular because it allows a litigant to go to court and obtain a judgment sooner than they otherwise would have. 

The lesson from Tiger King is that summary judgment streamlines the process for both the winner and for the loser.

The documentary tells the story of Carole Baskin’s civil lawsuit against Joe Exotic for copyright infringement.  Carole won the lawsuit on summary judgment.  She never had to go to trial: she got the Judge to rule in her favour before a trial.  As the loser in the lawsuit, Joe Exotic’s comments are notable.  He is filmed at the time saying, “You know the saying that you get your day in court?  Well I don’t feel like we got our day in court.”

“Justice delayed is justice denied”, but another old saying in the legal profession is, “Justice must not only be done, it must also be seen to be done.”  Summary judgment is a powerful procedural mechanism for shortening the length of civil disputes, but one must always be mindful of the countervailing concern, which is that a quicker process could be seen as being less thorough and/or less rigorous, which in turn could lead to the perception that the process is less fair because shortcuts are being taken on the journey to justice. 

If it means that a lawsuit which would otherwise take years ends up taking months, with largely the same result, then obviously this trade-off is worth it.  But it is useful for those of us who participate in the civil litigation system to remember that the efficiencies achieved by summary judgment do not come without risks.  In this case, the risk being that the party who loses on summary judgment might be less likely to accept the result as legitimate. 

The other observation to take from Tiger King should be warning to all lawyers who, in this age of social distancing, are looking to set up mediations by remote means.  If you have seen the documentary, you cannot forget this scene:

After having lost the lawsuit on summary judgment, Joe Exotic entered into mediation with Carole Baskin, with a view to coming to an agreement about how to pay the judgment.  They hired a mediator and, since Joe lives in Oklahoma and Carole lives in Florida, they conducted their mediation on a conference call. 

There are a few basic rules about a mediation, one of the most important of which is that a mediation is confidential.  Unbeknownst to either Carole or the mediator, Joe allowed a business associate of his to sit in on the conference call.  As the mediation progressed, this business associate, who had up to that point kept silent, suddenly exploded in a fit of rage, levelling a barrage of disgusting and vile epithets at Carole: the sort of sickening profanities which would make even the most shameless blush.  Needless to say, the mediation was not a success.

It is a real-life example of why a mediation held remotely is not a good idea: for the simple reason that the mediator cannot control the room.  They have no way of knowing whether or not unauthorised individuals are being made privy to the discussions and they cannot guarantee the confidentiality of the mediation.  The lesson from Tiger King being that when you are dealing with a character as volatile and off-the-wall as Joe Exotic, you should insist on holding your mediations in-person, so you can exert at least some measure of control over the process of the mediation.