Law Times

Law Times • July 22, 2013 Page 5 NEWS Report touts mediation training for judges Continued from page 1 While the voluntary nature of the task force's recommendation alleviates some of these concerns, the option of getting a separate meeting for a settlement discussion and trial management should apply only to claims worth more than $250,000, Morton adds. The judicial dispute resolution process in Ontario is a tricky area for many lawyers. While Ontario judges do facilitate mediation, there's no formal way of accessing that system. "It happens, but you've got to kind of know how to get it," says Sterns. "One of our recommendations here is that since these are public courts and judicial mediation is effective in some cases and everybody seems to acknowledge that, then there really has to be a transparent mode of accessing it. There should be some parameters that are widely accepted about when and how it should take place." Other Canadian provinces have more formal judicial dispute resolution systems. With possible access through the recommendation of the chief justice, Quebec has a robust structure for judicial dispute resolution, says Sterns. But he notes the OBA task force refrained from adopting a specific province's system because of Ontario's unique position when it comes to mediation. "Ontario starts from a different perspective in that we have here a very vibrant private mediation bar and they have really developed an international reputation for effectiveness and I think we're leading the way in that regard," says Sterns. Still, many people seem to agree that a portion of cases could benefit from mediation facilitated by a judge. This is especially true when parties "intractably wedded to their own sense of justice" could benefit from "a reality check" someone with the authority of a judge can provide, according to the report. "Where an otherwise clearly resolvable case is eluding resolution because of a client's refusal to take a lawyer's good advice on settlement or a client's insistence on his 'day in court,' a judge may be able to facilitate a settlement where others have failed," the report states. But judicial gravitas is a double-edged sword, the report warned. While a judge's presence may mean more efficiency, it can also intimidate the parties and lead to what in essence is a coerced settlement. Judges who facilitate mediation should therefore have training for such a role, according to the report. and complained to the law society about it a couple of years ago. "Practice of this nature would have been unthinkable prior to the advent of technological advances. Yet this and other novel forms of 'virtual law practice' may become increasingly common in the future," wrote Constance Backhouse on behalf of the panel. The panel pointed out that there are no regulatory guidelines for lawyers who do collections work and no rules prohibiting sending demand letters or draft statements of claim. Although the law society had concerns over the size of the practice, its structure, and the difficulties of overseeing a high-volume business model, there was no suggestion at the hearing as to how many files a lawyer could take on. "Indeed, neither party was able to offer assistance on the matters that formed the heart of the dispute," wrote Backhouse. "The law society and the lawyer disagree on whether the nature of this newly structured law practice ran afoul of professional obligations, and the evidence put forth was insufficient for the panel to rule on one side or the other," she added. Instead of initiating an individual investigation and disciplinary hearing into the complaints Natale's practice generated, the panel suggested a better response would have been to examine the systemic approach some law practices have adopted. The panel suggested the LSUC should take a thorough look at how it needs to change its "traditional regulation" in order to adapt to the new approaches while protecting the public. And it went further by characterizing the disciplinary approach against Natale as unfair. "These are matters that should be dealt with in the context of Convocation, setting regulatory guidelines after a widespread policy review, and not through professional disciplinary proceedings brought against an individual lawyer," wrote Backhouse. The panel "recommends strongly that the law society refer these and other matters relating to newly structured ways of delivering legal services to a committee that can obtain expert input, conduct policy analysis, and provide a comprehensive review," she continued. In finding that Natale had failed to directly and effectively supervise her staff, the panel concluded she had failed to assume complete responsibility for her office. "The evidence demonstrates that some of the non-lawyer staff members of the Natale law office were rude, misleading, harassing, and threatening in their efforts to follow up the claim letters," wrote Backhouse. "In some instances, the staff requested that the individuals they contacted provide documentation to prove that they were not indebted, when the lawyer herself was unable to provide for them any details of the alleged debt. In some instances, the staff followed up the claim letters erroneously, with individuals who were not the debtors — because they had already paid off the debt, because they had declared bankruptcy, and in some cases because they had simply been misidentified as the debtors when they had nothing to do with the case at all." Trudell says the panel was very critical of the approach against Natale and seemed to struggle with what to do. "It probably should have been done differently. I have never seen a case where someone had to go through what Deanna Natale had gone through. But she is strong, she is resolute, she is ethical, and she survived this. She was carrying a real load for the profession." Trudell says it's now in the hands of the law society to examine the issue of high-volume will likely recognize as authoritative," the report states. The task force also found a surprising and perhaps ironic added bonus to this form of dispute resolution: Since "less sophisticated" litigants may not be aware of the benefits of mediation and would like their day in court, appearing before a judge would be particularly important for them. The OBA task force suggests further consultation with stakeholders before drafting specific rules and procedures for judicial dispute resolution. LT We would like to thank all those who took part in THE 15TH ANNUAL McKELLAR CHARITY GOLF DAY on Monday, June 17th, 2013. This event raised $24,850.00 for wicc (women in insurance cancer crusade) for use and support in their fight against cancer. Lawyer carried 'a real load' Continued from page 1 Judicial pretrial conferences are also a good alternative for litigants with limited means, the report noted. In fact, they may mean more litigants will have counsel as they'd have a more concise retainer than one required for a trial. "Clients who are unrepresented because they cannot afford a lawyer have the most potential to benefit from judge-led dispute resolution as it (a) is a free dispute facilitation process; (b) has the trappings of a day in court that a judge brings; and (c) provides an objective evaluation of their case that they may need and that they A special thanks goes out to our sponsors for this event: TITLE SPONSOR law practices that rely on technology. For its part, the law society says it's aware of the panel's reasons and is reviewing them. "If it's determined that rule, bylaw or policy amendments are required, we will refer these to appropriate committees of Convocation for consideration," said Susan Tonkin, communications adviser for the law society. As for Natale, Trudell says she no longer does debt-collection work and will accept the reprimand imposed by the panel and waive her appeal rights. LT FINANCIAL HORIZONS GROUP PLATINUM SPONSOR SUN LIFE FINANCIAL GOLD SPONSORS BMO LIFE ASSURANCE COMPANY THE STANDARD LIFE ASSURANCE COMPANY OF CANADA BRONZE SPONSOR THE RIORDON DESIGN GROUP INC. In total to date, McKellar has raised $217,900.00 for WICC. We appreciate your support! www.mckellar.com cKellar_LT_July22_13.indd 1 13-07-12 10:26 AM WHAT'S HAPPENING IN EMPLOYMENT LAW? Canadian Employment Law Today is the essential newsletter you need for employment law-related rulings in court, tribunals and other judicial bodies. The bi-weekly newsletter summarizes and comments on issues and trends in employment law. Save valuable hours of research — spend more time using the information to improve procedures and decisions. START YOUR SUBSCRIPTION AND RECEIVE: • 22 issues of Canadian Employment Law Today • Full access to Canadian Employment Law Today's website, www.employmentlawtoday.com, featuring a searchable archive of past issues • Bi-weekly email alerts to keep subscribers up-to-date on breaking news and notifications of new issues SUBSCRIBE TODAY FOR ONLY $299 Order #A20612-13 ORDER TODAY: Call toll free 1-800-387-5164, in Toronto 416-609-3800, online at www.employmentlawtoday.com/subscribe or email carswell.customerrelations@thomsonreuters.com www.lawtimesnews.com Untitled-2 1 13-07-12 10:11 AM

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