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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2010 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. 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, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. September 20, 2010 • Law timeS Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $159.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guar- anteed. Contact Jacquie Clancy at: jclancy@ clbmedia.ca or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Winkler sparks important debate on mediation O ntario Chief Justice Warren Winkler raised an important issue this week at the Open- ing of the Courts ceremony. Calling for a "fresh conceptual ap- proach to resolution of family disputes in Ontario," Winkler said it was time to consider introducing mandatory media- tion for family law cases. "I question the slow and steady approach of fine-tuning and rationalizing the present system," he said. "Rather than incremental change, perhaps it is time to consider a more dramatic and pragmatic revision of the manner in which family law services are delivered across Ontario." His envisioned changes would mean that "only in the event that the alterna- tive dispute resolution process is unsuc- cessful would access to the costly, time- consuming, adversarial, and sometimes acrimonious court process be made available to litigants." Winkler's remarks are refreshing. Giv- en that mandatory mediation for family law cases is already a reality in other ju- risdictions, it's time for Ontario to have a full discussion on it as one way of possi- bly speeding up an area of the justice sys- tem long plagued by delays. For a couple of years, Attorney General Chris Bentley has touted and introduced measures to respond to those concerns, but maybe it's time to act in a more radical fashion. Of course, given that the government has yet to even make mediation in civil cases mandatory across the province, it's obvi- ous that we could be doing more. Of course, as with anything, there are concerns about making fairly radical changes. Critics of mandatory media- tion have pointed out, for example, that while going that route has the lofty goal of keeping cases out of the courts and can thereby save litigants time and money, success rates are lower when parties do it as a required step than when they do it voluntarily. Some statistics, in fact, put settlement rates at 50 per cent or less in mandatory cases as opposed to up to 75 per cent in voluntary ones. Feminist groups, meanwhile, raise concerns about mandatory mediation, particularly given the power imbalances that can put women at a disadvantage in defending their legal rights in that setting rather than in court. That concern is es- pecially present in cases where domestic violence is a factor. Mandatory media- tion is obviously inappropriate in those instances, but can the system properly screen them out? Will women seeking child and spousal support get their full entitlements in a less adversarial setting? In addition, the idea of mandatory mediation raises concerns about issues like discovery given that it may be harder to get full disclosure about a spouse's fi- nances under that process than under the heavy hand of court proceedings. Will litigants be able to get proper valuation of assets through their own experts? Is mediation, which tends to favour joint custody arrangements for the children in family law cases, not suited for particular- ly acrimonious disputes between spouses? What about the cost? Will mandatory mediation simply add another layer of expensive proceedings that make divorce even more costly when cases go to court? There are ways of dealing with many of these issues that courts elsewhere have tried. In the Los Angeles Superior Court, for example, mediators, who are court employees, don't cost the litigants any- thing. At the same time, improving legal aid would go some way to addressing cost issues and power imbalances. So poten- tial solutions to make mandatory media- tion a viable option are there. Kudos to Winkler for starting the discussion. — Glenn Kauth scape, it's easy to forget how new they are. In fact, it was barely 20 years ago that the Supreme Court of Canada struck down law soci- ety rules that prohibited most interprovincial law firms in this country. Among the big nationals to- day are Bennett Jones LLP and McCarthy Tétrault LLP, both well represented on the To- ronto legal scene. So it's worth noting the recent passing of a lawyer who never practised in Ontario but who helped bring both of those firms into being. Thirty years ago, Robert Black was a name partner in Jones Black, a leading Calgary law firm. A key firm client was Calgary Power, for which Black was both director and general counsel. But another Jones Black client was an upstart Megafirm founder Robert Black never worked all night N owadays, while big national firms domi- nate the legal land- firm called ATCO, which had launched a hostile takeover of Calgary Power. Jones Black believed the firm could put up firewalls, recruit independent counsel, and continue to serve both sides. But Black thought it was impossible to paper over the conflict. In 1980, he left Jones Black to form Black & Co., where he assisted Cal- gary Power's successful defence against the takeover. Now called TransAlta Corp., the company continues to thrive. Having lost Black, Jones Black needed a new name. To escape an endlessly chang- ing roster of senior partners' names, it looked to the founder of the firm: R.B. Bennett, the millionaire Calgary lawyer who was prime minister of Canada from 1930-35. Bennett had been dead since 1947, but his name was perfect for a permanent law That's History By Christopher Moore firm brand. As a result, Black's tumultuous exit became the stimulus that produced the new moniker, Bennett Jones. For about 10 years now, Ben- nett Jones has been leveraging its leading place in oil-and-gas law to lay the foundations for a growing national law practice. Black, meanwhile, had also been in on the birth of another national law firm. Out on his own, he decided not to take his blue-chip roster of clients to some other Calgary firm. Law firms were too small and local for the scale of business they were doing, he concluded, and too often conflicted. So he linked up his firm, Black & www.lawtimesnews.com Co., with McCarthy & Mc- Carthy in Toronto. In 1980, McCarthys was seeking a way to get in on the Alberta boom. The merger with Black & Co. did that and helped launch McCa- rthys on its path towards na- tional expansion. But Black's deal with Mc- Carthys provoked the ire of the Law Society of Alberta, so it passed rules forbidding in- terprovincial law firms. It was Black's lawsuit, Black v. Law Society of Alberta, that cleared the way for Canada-wide law firms. Both of Black's firms, Bennett Jones and McCarthys, would be beneficiaries. Although he helped bring the big-firm model of practice to this country, Black always had a fondness for an older style of legal practice. In his personal care for his clients, he struck some as being more like a traditional English solicitor than a megafirm honcho. As early as the 1950s, while working with big Wall Street law firms on financing for Cal- gary Power, Black professed himself "overwhelmed by these immense law firms. And I re- alized what a different life I was leading as a general prac- titioner. . . . They would work endless hours, would not even get home at night, and I found that very foreign to me. Be- cause of course no one in our town would work all night." Robert Black, both a founder of megafirm law in Canada and a veteran of times when a top corporate counsel never worked all night, died at home in Calgary in August at the age of 88. LT Christopher Moore's newest book is The British Columbia Court of Appeal: The First Hundred Years. His web site is www. christophermoore.ca.