Law Times

Page 2 March 2, 2015 • Law Times www.lawtimesnews.com NEWS date, even though counsel was only suggesting a delay of two months," the judge wrote, adding that since the girl had been living with her moth- er for nine years, it was "inconceivable that a delay of two months was unreasonable or could not have been accommodated." The decision follows debate in the legal profession about the ap- propriateness of mediation-arbitration. Critics say it's impossible to set aside perceptions formed during the mediation phase and objec- tively hear the facts at the arbitration stage. Glaholt LLP counsel Harvey Kirsh is a skeptic of the mediation- arbitration process. "My own personal view is that you can't be a mediator and then subsequently be an arbitrator in the same dispute involving the same parties," he says. "Part of the reason for that is because when you're acting as a mediator, most mediators' objective is to solicit trust from both parties and to have both parties make disclosures to the media- tor that may help him or her bring the parties close together." The disclosures can sometimes include the weaknesses of the parties' cases, he notes. "Sometimes, that involves disclosing to the mediator weaknesses of your case or confidential things that would never come up in court or an arbitration hearing," he says, adding the same mediator would then put on "a different hat as an arbitra- tor" after being privy to such information. Kirsh believes the judge in McClintock was correct to remove Direnfeld. "It looks like the mediator was not impartial; he had pre- judged the case and he had sided with one of the parties." For Direnfeld, letting the parties know how the matter could end at arbitration judging by where things are at a given moment is part of the appeal of this form of alternative dispute resolution. "We are choosing an alternate dispute resolution process because we actually value the opinion of the person providing the settlement conference or the mediation phase. We value that that person will preside over the arbitration phase and want them to be privy to all this information and knowledge." In his specific case, his contracts allow him to contemplate infor- mation obtained during the mediation phase later at arbitration if the first stage of resolution fails, he notes. He also suggests it's nearly impossible to say, "What happens in mediation stays in mediation." "The fact is we all remain human and we're going to be inf lu- enced, truly, by the entire process." According to family lawyer Gary Joseph, while one party may ap- preciate the arbitrator's opinion following mediation, the losing side is likely to feel otherwise. Joseph, a fierce critic of mediation-arbitra- tion, says the effort to reduce costs and expedite matters is having an impact on proper due process. "There's a reason why settlement conference judges cannot hear trials and the reason is we are all human and we can't help but absorb and be somewhat inf luenced by data and material that we receive within another process," he says. LT Untitled-1 1 2015-02-04 1:53 PM Continued from page 1 Arbitrator removed might result in what he calls "collateral damage." "The other danger here is that if you're in a situation where, to oversimplify, you have middle- income people against low-in- come people in legal disputes or whatever, then if ABS manages to improve the affordability of legal services for people living on middle income when they're in a dispute with someone living on low income who hasn't been able to benefit from more afford- able services, you may be in fact making the situation worse off for low-income people," he says. According to the report, oth- ers groups that made submis- sions, such as LawPRO, suggest- ed the idea of franchise law firms is "exciting." But many opponents of al- ternative business structures downplayed the value of new models in fostering technologi- cal advances. "These highlighted that inno- vation is already taking place in Ontario's legal systems without ABS. The Ontario Trial Lawyers Association (OTLA), the Crimi- nal Lawyers' Association (CLA), the Ontario Bar Association (OBA) and the Southwest Re- gion Women's Law Association, for example, noted that innova- tion is already occurring in law firm settings without needing to turn to external ownership through ABS," the report noted. "OBA noted that its mem- bership did not report having experienced barriers (such as ac- cess to capital) as a result of the existing regulatory framework that would prevent them from practising law in an optimal way or from addressing unmet legal needs. OTLA noted that firms such as Cognition LLP and Conduit Law already exist in Ontario, and operate within the current regulatory framework." Interestingly, those same firms said they could benefit technologically from alternative business structures. "Two firms (Cognition LLP and Conduit Law) indicated that regulatory barriers prevented or currently prevent them from structuring their practices in forms they view as preferable," the report noted. "For example, Cognition LLP advised that its ability to expand its in-house technological in- novations is constrained by its inability to obtain external capi- tal through alternative means. Some responses indicated that they would give serious consid- eration to embracing some level of non-lawyer ownership, or would already have done so had it been permissible to do so." Cognition LLP's Joe Milstone says there's still some way to go when it comes to using technol- ogy to increase efficiency and reduce the cost of legal services. "There are a lot of fascinating startups and new legal technolo- gy . . . but if you're telling me that people are telling you and telling the law society we're already ful- ly exploring those, I don't really believe that," says Milstone, add- ing the profession is just scratch- ing the surface in this area. Milstone also says Cognition would appreciate the opportu- nity to have the financial and advisory contribution of "the most excellent business minds in Canada." Most of the risks and con- cerns expressed in the report are the ones the profession has been talking about lately. One such concern is the risk that firms may be unable to take on some cases, on a pro bono basis or oth- erwise, if they're against the in- terests of the non-lawyer owners of legal service providers. Both the OTLA and the Criminal Lawyers' Associa- tion also told the law society the quality of services may dwin- dle under alternative business structures as the push to com- moditize services could mean corporations will delegate work to law clerks and junior counsel instead of experienced lawyers. The law society has so far re- ceived 40 responses on the topic from organizations and individu- als. LSUC Treasurer Janet Minor expects the law society's working group on the issue will come to Convocation with recommenda- tions next year. "Before they do that, we will be expecting them to do more work. There's more learning to be done and more conversation with the profession," says Minor, adding the law society is "very pleased" with the response it's getting on this issue so far. While the law society is open to all submissions, it's not treat- ing them as "a vote" on alterna- tive business structures, she says. "It's a sufficiently complex is- sue that having just a yes or a no doesn't do justice to the kind of issues that have to be addressed," she says. LT Submissions not 'a vote' on ABS: LSUC treasurer Continued from page 1 Untitled-3 1 2015-02-17 10:42 AM

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