What are the advantages of using the public court system, over private arbitration?
Judges have tenure. They are insulated from any need to develop future business. This removes the appearance of any potential desire to favour a party more likely to generate future work. Also, there is no charge for using the court system, other than minimal costs for filing and obtaining court documents.
In addition, Judges have authority which can be brought to bear upon parties who do not cooperate or behave unreasonably.
What are the disadvantages?
The parties lose all control over who will decide the dispute. Sometimes parties want a person with certain expertise.
The procedure to be followed is “one size fits all”. The parties also have little control over the timetable, or date of hearing. They have none over the date a decision is released.
What is arbitration?
Arbitration is an alternative to the Court system. A hired, neutral person instead of a government appointed judge, hears and decides the dispute. An arbitrator’s decision can generally be enforced as if it were a court order.
How do you choose arbitration over the court system?
The parties to the dispute must agree. An agreement to arbitrate can be made either after the dispute arises, or in anticipation of a dispute, just as in sports the players agree in advance to give authority to an umpire or referee to make decisions. The Ontario court will not adjudicate a dispute which the parties have agreed to arbitrate.
Why pay an arbitrator when the court system is free?
Privacy, and control over the schedule, including the decision date, are two major considerations. Under the court judicial system it may take years for a case to reach a decision. The vast majority of disputes (over 96 % in Ontario) never get to a judicial decision. They proceed as if they will, but are settled in mediation.
If most cases are settled by agreement of the parties, why use an arbitrator to impose a decision?
Sometimes the parties to a dispute want a decision to be made.
For them, there is nothing worse than spending years and unpredictable amounts of money litigating a dispute only to result in a “saw off” settlement at mediation.
How “predictable” is the cost of using arbitration to determine disputes?
Cost is as predictable as the parties agree.
The biggest factor is time. There is a saying that work expands to fill the time allotted to complete it. The longer a dispute takes to resolve, the more it costs. Using arbitration the parties agree to a timetable for the steps to be taken, the date of the adjudication, and the date by which a decision must be given. Costs can be contained significantly by an aggressive timetable.
The second most important factor is the cost of the lawyers. Many lawyers are understandably reluctant to give a fixed fee for representing a client in the court system because it is very difficult to know how much time will be required to do the job properly. A fixed timetable of the precise steps to be taken gives an experienced and competent lawyer the opportunity to “measure” the job, and quote a fee for each stage.
What is mediation?
Mediation is a process by which the parties exchange facts and documents about the dispute, then meet with a neutral third party who will go between them, and attempt to get them to reach agreement.
Mediation can be very effective, particularly where emotions are running high and the parties benefit from venting their views. To be effective, the parties must be willing to compromise and must want to reach an agreement.
Someone described mediation as, “The most expensive sandwiches I ever had”. Is it worth the expense?
Mediation is mandatory in many jurisdictions in Canada. It is therefore essential to do everything possible to make the expense worth it. You must be properly prepared. However, there is no obligation to reach a settlement at mediation. It is important parties know their “bottom line”, and are not forced into accepting a settlement through exhaustion or exasperation.
What is referral advocacy?
It is a model in which trials and other difficult court work is done by a specialist in advocacy (barristers) to whom other lawyers refer as needed. It is used in much of the Commonwealth and in England, Wales and Ireland. It continues to exist despite legislation in several of these jurisdictions which removed the exclusive rights of barristers to appear in the Superior Courts.
Because these lawyers specialize in preparing and presenting a case to a judge or arbitrator, can offer more courtroom experience. This can give a client a significant advantage.
Does this mean more expense, because the client has to pay two lawyers?
Not necessarily. A lawyer who is more experienced in courtroom advocacy will often be able to narrow the issues, which, apart from making the case more persuasive to the judge or arbitrator, can result in significant saving of preparation time, and court time. Also, although the barrister must spend time learning information the referring lawyer already knows, there is little duplication after that point. Even if there is a higher cost, there is also a negotiating benefit.
How does using separate lawyers for settlement negotiations and for going to court benefit the client?
It allows the negotiating lawyer to concentrate fully on settling the case. If no settlement results, he or she is not then left with the predicament of having to prepare to meet a looming hearing date. This stress can put pressure on the negotiating lawyer to settle.
Won’t the client be upset if her lawyer hands over the reins to another lawyer at a critical point?
Not if more experience in the courtroom might give a significant advantage. Also, the referring lawyer remains the client’s lawyer, and stays as involved as the client wishes. The barrister and referring lawyer confer with each other throughout. On the contrary, the client has the knowledge that their case is being fought on two fronts by two dedicated specialists, each one having their own individual skill set.
Surely the barrister cannot know the case as well as the lawyer who has handled it for years up to that point?
It is true that the referring lawyer will probably have a deeper knowledge of all the evidence, but what is critical to a persuasive case, is separating from all of the evidence, the smaller part that really matters. Sometimes it is easier to do this when coming in with fresh eyes, later in the game.
Are there benefits for the referring lawyer?
Yes. Although the referring lawyer will be giving up the opportunity to earn fees from going to court, she or he will be free to spend more time in the office serving other clients, and taking on new ones. Lawyers who refer to specialist advocates when needed, lose the headaches of trial work, the havoc it wreaks on a practice, and the responsibility for an unfavourable outcome. The ball can take a funny bounce in litigation:
“In many ways a trial, like skydiving, is not inherently difficult; however both can be terribly unforgiving of the slightest inattention.”
— Courting Justice, David Boies
Referring lawyers transfer the risk of cost overruns to the court lawyer, they can distance themselves from an unfavourable outcome, and often earn the client’s gratitude when the outcome is favourable.
Doesn’t the referring lawyer risk closing the client?
No. The file is not ” sent out”. There is no disruption to the relationship between the referring lawyer and client. The client remains the client of the referring lawyer, and takes the file back at the conclusion. The referring lawyer remains as involved in the case as they and the client wish, working closely with the court lawyer to make full use of all the matter history and knowledge the referring lawyer has acquired. The ongoing litigation services, other than advocacy, remain within the broader retainer of the referring lawyer.
CHOOSING A LAWYER
How should a person or corporation involved in a legal dispute choose a lawyer?
There are lots of lawyers out there who are well trained and have the expertise to handle your legal problem, but the two qualities you need most in a lawyer, contrary to what you might think at first, are dedication to solving your problem, and candour.
Many people think expertise in a particular area of law, is the most important quality.
It’s true you want your lawyer to be experienced in the area of law that concerns your case: but that will not help much if your lawyer just sees your problem as another file to be processed, or if they fail to tell you bluntly about the strengths and weaknesses of your case.
What do you mean by dedication?
Dedication is selfless service: a constant effort by the lawyer to put him or herself in the shoes of the client, throughout the case; to understand the effect of delay; to know the importance of avoiding expense that is not directly connected to advancing the resolution of the problem.
Dedication means being 100% in the client’s corner.
But surely specialization must be an important consideration in choosing a lawyer?
Deep knowledge of the relevant area of law helps a lot, because it allows the problem to be assessed quickly and efficiently, without re-inventing the wheel. This is particularly true where the law is governed by technical, detailed legislation, such as taxation. But specialization alone is not enough.
Why is candour so important?
It is critical that the lawyer tells the client what he or she thinks, not what the client wants to hear. The lawyer does the client a disservice if he or she cannot or will not give the client a realistic appraisal of the prospect of success and failure, and of the likely cost.