OLD WHINE IN A NEW BOTTLE
More than 10 years ago, I and two colleagues proposed something radical: arbitrate all interlocutory and case management matters that were trapped in the court system. The idea was that the Action would remain in the court system and be eventually tried by a judge , but after the pleadings were exchanged, and an initial mediation held, the parties would be at liberty to immediately set down for trial. But any interlocutory motions and case management matters would be decided by the mediator/arbitrator who was retained at the commencement of the Action for that purpose. In effect, the idea was to privatize the then “Masters Office”.
Although several lawyers tried the new idea, many were wary of it. For some, the optics of a client paying a fee, albeit a very low one, for a package of arbitrated motions and case management decisions in the teeth of state-paid system seemed unacceptable. For others, the long wait until the trial was simply the cost of doing business that clients would understand and bear.
The idea was the subject matter of an Advocates Society panel discussion and others picked up the idea and wrote about it in law journals. But in the end, the idea, although perhaps revolutionary, was not as widely used as had been hoped for.
Today, the complaints among members of the bar regarding the delays in the system are cacophonous. Almost every barrister has a story about incompetent court services, overwhelmed judge dockets, and the appearance of total civil justice collapse. Justice delayed is indeed justice denied.
As a senior member of the bar, experienced in trial, mediation, and arbitration advocacy, I am constantly astounded by the lack of familiarity with the flexibility that mediation and arbitration offers, as an adjunct to the court system. While it may seem objectionable to "privatize" the office of Associate Justices, the simple fact is that it is the system that is failing clients and their lawyers.
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It is time for lawyers to use the tools available to them to get around court delays: use ADR as a means of getting to trial faster.
If you are interested in the idea or would like a copy of my "Speedy Justice Contract" feel free to contact me for more information.
Published by Gary Caplan
Employment Lawyer | I help with your employment law issues | I work with you to create effective workplace policies and employment contracts | I’m also a Workplace Investigator and Trainer
1 年The issue for many is why pay for what the court “should” be doing for free. And if one side will benefit from the delay (which usually is the case) there is no incentive to that party to do this. Even less now than when wait times were shorter.
Labour and Employment Mediation & Arbitration
1 年I agree with you. I have been encouraging arbitration, or med arb in employment matters for over 25 years but with almost no success. It seems lawyers would rather complain about the system they know about rather than try something new, at least new to them.
Chartered Arbitrator, Mediator, Lawyer, Author
1 年Good idea, Gary, then and now.
Partner at Lima Lee Simovonian LLP
1 年Janet Lunau - I read your post and could not agree more. Thought you'd find this article interesting.
Partner at Loopstra Nixon LLP
1 年Gary - I love this. I think the problem is related to folks generally neglecting that they can arbitrate (in full) after a dispute has begun. It’s never too late to agree to arbitrate, whether in whole or in part!