Canadian Lawyer

OP I N ION BY JIM MIDDLEMISS BACK PAGE I Getting radical with dispute resolution civil matters. Can you blame them? If there' t seems like every judge who retires these days is finding a home in the private court system as a mediator or arbitrator — a purveyor of dispute solutions in have the skills to provide it, why not? In fact, when it comes to the civil private court system, things seem to be booming, as alternative dispute resolution takes off. It begs some interesting questions. Do s a demand for the service and they ago, ADR is growing rapidly fuelled by a variety of provincial government initia- tives that impose some form of private mediation as a first step in litigation in a bid to resolve cases more quickly. The problem is that in major centres A blip on the legal map a mere 20 years we really need public civil trials in an age of ADR and private courts? Has the pub- lic civil trial become this era' beautiful, but dated, vessel that has been surpassed by better methods of dispute resolution? Perhaps it is time to turn over aspects of the civil justice system to the private sector to run, and save the courts for only the most important matters. Obviously, public courts are necessary s steamship: a like Toronto, civil courts are swamped. Litigation has been bogged down and cases take longer to hear and reach a conclusion. The discovery process has become increasingly complex. There are more fights over preliminary and intermediary matters. Expert reports are becoming more complex. The increasing reliance by companies on digital infor- mation has opened a hornets' nest with e-discovery, which used to be trotted out only in big litigation, but is now finding its costly way into smaller lawsuits. Civil lawsuits today have become too for big-ticket litigation over things like securities law and public companies or complex matters involving multiple parties and government entities, but is the public civil trial really the best way to settle a fight over a contractual term between two pri- vate companies, a dispute between neigh- bours over property, or to determine how much an injured citizen should receive after a misdiagnosis or a car accident? One doesn't have to look far to see the growth of the private civil court system at work. More lawyers are holding them- selves out as mediators and arbitrators. Private operations like ADR Chambers are expanding their offerings into inter- esting new areas, such as an ombud service banks, TD Bank Financial Group and RBC Financial Group, moderating fights between the banks and their clients. for two of Canada's biggest much about process and not enough about facts. One bemoaned that in defending a lawsuit worth $360,000, his lawyer billed him $150,000 just for e-discovery. That is insane and indicates that it in-house rates and the length of time it takes to get matters resolved that drives litigation costs upward. Provincial governments is hourly ling the growing problem of costly and slow civil litigation by implementing things like higher limits for small claims court and simplifying civil court rules. (Ontario applies simplified rules to cases worth as much as $100,000 in value.) Yet, none of it seems to help. When it comes to corporations, their are tack- lawyer recently is a financial incentive for them to settle disputes and many seem to be opting for some type of resolution outside the pub- lic court system. What contract today doesn't include mediation or arbitration clauses as a means of settling disputes? As the private court system flourishes and more cases get settled early, critics fret about the impact it's having. Google "vanishing trials" and you will find a range of scholarly literature about the lack of trial activity and the impact on everything from the making of law to the training of lawyers. Earlier this spring, former Supreme Court of Canada justice Ian Binnie worried that settlements mean fewer corporate cases are reaching the top court with the result that jurispru- dence is stagnating in certain areas. Another concern is that without trials, lawyers won't get training. That's true, but the courts are not for lawyers. They are for clients. They are so that members of the public can have their fights heard in a timely and efficient way. If the public courts can't deliver that, then why not let private courts have a run at it? Yes, an important function of educating the public, shining a light on nefarious con- duct and creating precedent. However, consider that 94 to 95 per cent of cases settle before trial. Most cases do not meet that test or require such scrutiny. It's time to get radical with delays in the open court system serves the civil justice system, and maybe forc- ing them into private courts that tackle dispute resolution differently is part of the solution. disputes with counterparties are usually contractual or centre on negligence related to some kind of product liability. There Jim Middlemiss blogs about the legal profes- sion at WebNewsManagement.com. You can follow him on Twitter @JimMiddlemiss. The McKellar Structured Settlement™ 46 JULY 2012 www. CANADIAN Lawyermag.com Untitled-2 1 12/8/10 3:45:27 PM

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