Law Times

Page 6 February 24, 2014 • Law Times www.lawtimesnews.com COMMENT Good move on family mediation hile the debate over whether to make mediation man- datory in family law matters continues, Legal Aid Ontario has come up with a project that may provide a signifi cant incentive for litigants to try alternative dispute resolution. Last week, LAO announced a pilot project to support family litigants who choose mediation. If they qualify, they'll get up to six hours with a lawyer who can help them with the mediation process. Services include advice about the process, assistance in preparing for mediation, and guidance to better understand their options. In ad- dition, litigants can get help in obtaining a court order or a binding agreement to enforce the terms of the mediation agreement. e pi- lot will run at 14 courthouse locations across Ontario. e pilot isn't a solution to the growing numbers of self-represent- ed litigants but it's certainly helpful. Ideally, it will complement the family mediation services already provided at Ontario courthouses. With the province pushing mediation as an alternative to costly court battles, the extra assistance is welcome. Financial eligibility, of course, is always a question, but in this case LAO has applied its somewhat more generous income thresholds for duty counsel assistance rather than for a certifi cate. ey range from ast December saw the release of the Canadian Bar Association's ac- cess to justice committee report, "Achieving Equal Justice," along with Ontario Superior Court of Justice Edward Belobaba's decision in Cannon v. Funds For Canada Foundation that ap- proved a class action contingency fee ar- rangement. e cases would appear to have little in common, yet they both speak to access to justice issues in disparate ways. Belobaba criticized the practice of bas- ing counsel fees on docketed time and con- cluded that it "encourages docket-padding and over-lawyering, both of which are per- vasive problems in class action litigation." He noted that "one imaginative, brilliant hour" of a lawyer's time may be of more value than 1,000 "plodding hours." Yet for the most part, lawyers continue to base their civil litigation fees primarily on docketed time. is approach rewards ineffi cient and disorganized lawyers while allowing them to ramp up unnecessary fees by spending more time on a task than they really should. It also allows lawyers to continue handling tasks better suited to paralegals or others. It's the quantum of legal fees that plays the largest role in our access to justice cri- sis and manifests itself in a massive class of self-represented litigants. According to the CBA report, 20 years ago, "best estimates are that less than fi ve per cent of litigants were not repre- sented by counsel. Today any- where from 10 to 80 per cent of litigants are unrepresented, depending on the nature of the claim and the level of court." e report refers to a study by Rachel Birnbaum, Nick Bala, and Lorne Bertrand that found a majority of self-repre- sented parties said navigating the civil justice system was dif- fi cult and that judges, lawyers, and litigants "were united in the belief that unrepresent- ed litigants fare worse in court and experi- ence poorer outcomes compared to those who have access to lawyers." If self-represented litigants have dif- fi culty navigating the justice system and believe they'd fare better with the help of a lawyer, it seems apparent that most would retain someone if they could aff ord it. Another study by Prof. Julie Macfarlane referenced in the CBA report concluded that many clients become self-represented litigants a er exhausting their resources or deciding that having a lawyer was poor value for their money. is takes me full circle back to Beloba- ba's critique of docket-padding and over- lawyering and the need to assess fair fees according to results rather than time. As well- intentioned as the CBA report's recommenda- tions are, there will be little progress on fi xing the access to justice crisis unless we tack- le the problem of excessive fees. at's not to say lawyers shouldn't earn respectable fees. However, we must step away from practices that reward those who incur more time in handling a fi le than those who do the work effi ciently. More pro bono legal services and legal aid clinics aren't the answer. We don't expect the sick to rely on volunteer medical ser- vices, so why should we expect those with legal needs to seek charity? Teaching law as a life skill, improving online materials, and simplifying court processes and forms are all good ideas but will likely merely create a higher calibre of self-represented litigant. Legal expense insurance sounds like a good idea but it has two major faults. First, it injects a third party that adds additional expenses and a desire to earn profi ts. Sec- ond, it creates the potential for coverage and other disputes between the insurance companies and their clients. More funding for legal aid is always a good idea but the money available for civil matters is on a downward spiral and that's not likely to change in a world where health care and education continue to soak up increasing government funds. It may not be what lawyers want to hear, but any practical solution to the access to justice crisis requires a fresh look at how they calculate civil litigation legal fees. In doing so, I'd start with the following questions: Do clients receive good value for their legal fees? Why do many lawyers bill their time in increments of tenths of an hour, o en with automatic rounding up to two-tenths? Fees escalate rapidly with such docketing practices and clients o en have little to show for the signifi cant fees billed. Why do lawyers bill time for inter-offi ce strategy discussions, thereby generating dockets by multiple people? Why do law- yers bill for extensive amounts of time for legal research? Some legal research may be necessary on certain fi les, but for the most part lawyers who take on a particular type of case shouldn't have to put in extensive time on such tasks. Given the magnitude of the problem, providing fair value to clients for fees billed would go a long way to helping alleviate the access to justice crisis. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff @gmail.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. 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But the pilot is certainly making good use of the $30 million the province has allocated to LAO over four years. LAO has found a good way to direct its limited resources towards advancing family media- tion. If the pilot is a success, it should continue. — Glenn Kauth W Social Justice Alan Shanoff L

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