Law Times

Page 10 April 11, 2016 • lAw Times www.lawtimesnews.com FOCUS Private case management is a viable alternative BY JUDY VAN RHIJN For Law Times J ust as the need for afford- able family law services prompted lawyers to offer task-by-task services, the need for inexpensive and con- venient case management has caused family arbitrators to of- fer their services in a piecemeal fashion. In the time it takes the court to get to a first conference, an ar- bitrator can have a matter well ad- vanced without the need for for- mal documents and appearances, yet the legal profession has been slow to take up the opportunity. "You can issue a claim and the initial case conference may be three months away. In that time, nothing happens. Within the same period with me, you could have one substantive mediation, one or more procedural or dis- closure decisions, and be almost finished. You could arrange a directional conference and have disclosure dealt with in a week, with a followup in a month," says Herschel Fogelman, a family lawyer, arbitrator, and mediator at Basman Smith LLP. Fogelman has been offering private case management since 2015. Lee Ferrier at Amicus Cham- bers is also offering case manage- ment services as an adjunct to his arbitration and mediation work. He notes that, in Toronto, there are only 12 or 13 judges available each week to handle civil matters. "e resources aren't there to provide speedy, economical, time-saving case management. ere are masters available in the Toronto region, but they're swamped as well. Private case management is a fairly recent phenomenon that is driven by a need," he says. Fogelman says that, from the client's perspective, a court case happens in fits and starts aer a claim is instigated. "Efficient private case man- agement can occur whether a court case has been started or not. e parties could start a case and then agree that, rather than have the court manage the timetable and procedural issues, they will do that privately, or they can start their case manage- ment independently," he says. Ferrier started offering case management as a separate ser- vice aer he was frequently called upon to make procedural orders when he was engaged to do the ultimate arbitration. Fogelman conceived of the idea in a different way. "It occurred to me that I was doing a lot of case management as a followup to mediations," he says. He was influenced by an American friend's experience with informal attendances. He decided to offer a customized service that starts right from the beginning of the dispute. Like Ferrier, Fogelman oper- ates in his capacity as an arbitra- tor, with an arbitration agree- ment or mediation/arbitration agreement drawn up. When he is engaged as a case management arbitrator, he will not arbitrate the final hearing. "I'll do everything up to the exit pretrial. By that point, I've been involved with the case for a while. I've probably done some motions, been privy to settle- ment discussions, and sat in on mediations. It's not appropriate to then do the final hearing," he says. Fogelman lists the advantag- es of doing what he considers to be a "bespoke" kind of litigation. "I can deal with it in a timely way so people are not booking months in advance. I can also deal with it informally so people are not filing voluminous docu- ments and updated briefs. I can hold meetings at 5 p.m. if need be. Everything is tailored to the problem. In court, everything is tailored to the rules," he says. Ferrier says the profession should be taking advantage of private case management. "e great beauty of it is that the formal preparation of docu- ments drops way down and lawyers can stay in their offices. ey don't have to send some- one to file formal documents with the court, or appear before the court. It can save the client a lot of money, move matters along a lot faster, and free up lawyers to do more substantive things," he says. "Interim issues are usually resolved by way of conference calls and e-mails — all to the cli- ents' benefit. e ability to make a quick arrangement facilitates the process tremendously." Fogelman says the new ser- vice is underused right now, but the few people using it like the efficiency. "It has been slow to get off the ground, but the feedback I've re- ceived is really good. Even judges think it's great. ey know the in- stitutional problems, especially in the GTA." Fogelman offers it in family law and is adamant it is suitable for use in other areas of law as well. "It could cross over and be available to all types of legal dis- putes. Timetables, disclosure, and rules are what they are. It's very transferable." LT Herschel Fogelman says efficient private case management can occur whether a court case has been started or not. The resources aren't there to provide speedy, economical, time-saving case management. There are masters available in the Toronto region, but they're swamped as well. Private case management is a fairly recent phenomenon that is driven by a need. Lee Ferrier CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com The reason why we are Canada's largest and most comprehensive structured settlement firm has everything to do with our passion for service and performance— without exaggeration, we make life easier for you. The largest Swiss Army knife has 85 tools that can perform 141 tasks. Almost as helpful as McKellar. Untitled-3 1 2015-11-24 4:02 PM

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