Looking for the Access to
Justice Research Network
(AJRN)? Click here

Lives on Simmer! Early Intervention For People Living on the Margins

This is the third post in a series following the developments of the Halton Community Legal Clinic’s Legal Health Check-Up Project. Previous posts can be found here and here. 
The Legal Health Check-Up Project developed by the Halton Community Legal Clinic has been running for about three months through the early phase of implementation, monitoring and course correction.  Project experience is a good teacher and the very early data and project experience is teaching the project team some interesting lessons. One of the main concepts underlying the Legal Health Check-Up Project was that the partnerships between the legal aid clinic and the intermediary groups would allow early intervention and the ability to prevent problems from becoming more complex and difficult to deal with.

These are early days and the data are very preliminary but here is some of the story the data are telling so far.  About half the people who requested follow-up by an intake worker at the Clinic and who have received a follow-up interview said a problem they were experiencing began within the previous two months. That is hopeful for being able to deal with problems early. Also, many clients experience multiple problems. About 40% of people who completed the Check-Up forms reported three or more problems. This is two to three times the percentage identified in legal problems surveys. Importantly, there is a very high correspondence between the clinically assessed legal problems at intake and the everyday legal problems identified on the Legal Health Check-Up forms. This tells us that the check-up form is a good tool for identifying unmet legal need.  As the project team pondered what the early data might be telling us we realized we had probably not framed the early intervention objective entirely correctly. The early thinking was not wrong but it had to be refined.

The need for early intervention is an idea that is based on the trigger and cascade effect that has emerged from the legal problems research. Legal problems trigger other legal problems. Legal problems trigger, and are triggered by, a range of non-legal problems. This presents a linear idea of problems occurring over time, suggesting that problems might be prevented or at least managed if they are identified and help provided early enough in the process. This concept is based on large-scale surveys of the public and may adequately characterize the way in which problem sequences emerge for members of the public generally. However, a linear trigger and cascade concept of experiencing legal problems may not be the best way to characterize the way the marginalized groups making up the population served by legal aid experience multiple problems. Rather than a linear concept, it may be that the lives of the poor are on a constant simmer of multiple inter-connected problems that occasionally erupt into crisis situations.

This early project experience suggests that extending the reach of legal aid may not prevent legal problems among the marginalized people making up the legal aid client base. Lives kept in a constant state of simmer by scarcity may not allow that to occur. However, extending the reach of legal aid by partnering with intermediary groups may increase the capacity of legal aid to prevent problems on a constant simmer from ‘boiling over’. Borrowing the metaphor made famous by Richard Susskind in The End of Lawyers, depicting the choice between the fence at the top of the cliff, or, the ambulance at the bottom, the poor are crowded close to the fence and relocating them very far up the path away from the fence is difficult. Legal aid may, however, be able to catch them before they tumble over the cliff.  That is a refinement of early intervention tailored more realistically to the lives of people living on the margins. Early indications are that the partnership between the Halton Legal Aid Clinic and trusted intermediaries who are closer to the lives of the poor can accomplish this objective. The Legal Health Check-Up is proving to be an effective tool in a proactive process where intermediaries can reach out and identify people with everyday legal problems and guide them towards the help they may need.

 

British Columbia’s Civil Resolution Tribunal Launches Implementation Website

This week British Columbia’s Civil Resolution Tribunal (CRT) launched an implementation website that will provide BC residents with information about the progress and development of the CRT’s work. 

According to the website, “the CRT is going to be very different from other dispute resolution options that been available in British Columbia. The CRT will give you choices about how, when and where you resolve small claims and strata property (condominium) disputes.” The CRT is motivated to empower “people to become actively engaged participants in their justice system.” 

Beyond merely providing information, the implementation website will allow the public to ask questions and provide comments to the CRT team. The CRT is committed to making the tribunal as easy-to-use and accessible as possible, and encourages the public to get in touch with them through the website.  Not only will the site offer updates on the CRT it will also feature expert guest posts – so be sure to check back often.  

To learn more about this important work check out this paper from CRT Chair, Shannon Salter. The paper was presented last month at the Osgoode Forum on Administrative Law and Practice in Toronto and the CLEBC Administrative Law Conference in Vancouver.

 

 

The Cyberjustice Laboratory: where justice processes are modeled and re-imagined.

The scope of the research being conducted by the Cyberjustice Laboratory is extensive. According to the website, there are over 33 projects underway by various researchers affiliated with the Laboratory. The Laboratory’s projects range from the development of new online dispute resolution platforms (more on this project below) to the development of a framework to assess e-justice systems.  Each research project falls within one of three broad research clusters, each of which are guided by interrelated, yet distinct, research questions. The first cluster examines digitalization of justice to determine the degree to which it can increase efficiency in the justice system and facilitate access to justice. The second identifies restrictions on digitalization of justice caused by the traditions and practices in place in the justice setting. The third puts the first two into practice by developing new procedural models that combine information and communications technologies while ensuring respect for fundamental rights.

Bachar Daher, an articling student at the Laboratory, was happy to share his experience with me to help shed light on the types of problems that the Laboratory is working to solve. Bachar recalls his early days at the Laboratory, explaining that this was the first time that he was able to practically implement the law and apply it to areas such as technology, psychology, sociology and economics. He explains that the Laboratory’s mission is to improve access to justice in Quebec, in Canada, and internationally, using technology as a facilitator. Bachar describes the Laboratory as an environment where he was granted the freedom, confidence, and autonomy to think outside the box, to experiment, to voice his opinion, and to explore new methods of approaching issues.

The Laboratory’s mission transcends national boundaries and its innovations, advances, and the determination of its team position it on the world stage; it works closely with international organizations, government departments at national and international levels, professional bodies, NGOs, partners and research centers on all continents, as well as the private sector. Altogether, the Laboratory consists of 36 full-time researchers, 70 research students, 20 universities and research centers, and 9 partners.

One example of the Laboratory’s global reach is its project with the World Bank that aims to improve access to justice in Latin American countries. The objective of this project is to examine and implement potential solutions with the end goal of creating an effective network, using technology to improve individuals’ ability to access their respective justice systems. Essentially, the Laboratory uses advances in research and technology developed in Montreal to improve access to justice not only in Canada, but globally as well.

Bachar describes the Laboratory as being a space for reflection and creation where justice processes are modeled and redesigned to better meet the needs of individuals. The team analyzes the impact of technology on justice and develops practical systems adapted to the realities of judicial systems. In other words, the Laboratory is a place of convergence where different actors come together to discuss and challenge proposals, to experiment with solutions, to propose strategies, and to work collaboratively.

The Laboratory’s creation was based on several premises, the primary one being that technological advancements have become increasingly prevalent while the use of computers and networking is not yet fully integrated into the judiciary. Two prime examples are the persistent attachment to paper and the physical presence of all stakeholders at trials. The justice system is also hampered by costs and delays caused by lengthy court proceedings. Fortunately, the rapid arrival and adoption of smartphones and tablets during the end of the last decade helped ease many players in the legal world into the idea of using technology.

When I asked Bachar about barriers to innovation that he has experienced, I was inspired by his response. He explained that he prefers to look at what others may call barriers as being no more than challenges. “Laboratory challenges abound,” he explains. “A very concrete example I can give is that… today, most users expect to use tools that are similar to the gadgets used in their daily lives.” He went on to explain that it is very difficult to conduct ergonomic and behavioural research on the techno-legal and socio-legal impacts of a user interface when gadgets change so rapidly. The Laboratory must be proactive enough to follow the changing trends in technology as they happen.

I find the Lab’s Online Dispute Resolution (“ODR”)initiative, PARLe, to be particularly compelling. This initiative differs from other ODR platforms because it is open source; PARLe is openly available for use, integration, and improvement, to all organizations either already involved in, or hoping to become involved in, online mediation. This type of platform has significant benefits for its users, such as cost savings and convenience. However, there are also important drawbacks, such as the fact that, at the moment, these types of platforms only apply to a limited range of disputes and may be inaccessible to certain individuals. Bachar explains that the Laboratory aims to build an online mediation tool that is tailored to the needs of the judiciary, the litigant, and the legislator. However, he concedes that an online mediation platform should not be viewed as a solution to the challenges of the justice system in itself. Rather, online mediation is a tool that contributes to the creation of a solution.

Bachar illustrates this distinction by analogizing it to the invention of the printing press: “The printing press contributed to the advancement of knowledge because writing became a powerful tool for knowledge transfer. However, writing would lose its power in the context of an illiterate society. Similarly, the success of a platform for online mediation depends on the ability of the broader environment to adopt and use this tool.”

In conclusion, leading organizations such as the Cyberjustice Laboratory introduce effective innovations that allow the broader community to address some of the shortcomings of judicial systems and to improve access to justice. To learn more about the Cyberjustice Laboratory and its exciting initiatives, click here.

 

This piece originally appeared on the Winkler Institute for Dispute Resolution Justice Innovation Blog. 

How lawyers resolve family law disputes

This past July I was able to sample the views of 167 lawyers and judges attending the Federation of Law Societies of Canada‘s National Family Law Program in Whistler, British Columbia through a survey designed and implemented by two prominent academics and the Canadian Research Institute for Law and the Family. The survey asked questions about participants’ views on shared parenting and shared custody, litigants without counsel, and dispute resolution.

In the course of digesting the resulting data for a report, I noticed something very interesting about the information we’d collected on dispute resolution. We had asked lawyers to tell us the percentage of their family law cases which are ultimately resolved by: arrangements made by the parties themselves; negotiation involving lawyers; mediation; collaborative settlement processes; arbitration; through court with the assistance of a judge at an interim hearing or a judicial conference; or, through court at trial. Here’s what the numbers told us:

As you can see, the lion’s share of cases are resolved through negotiation, primarily negotiation involving lawyers. (If you click on the image, you’ll get a larger, clearer version of this chart.) By region, lawyers reported that their family law cases were settled through lawyer-involved negotiation as follows:

  • North (Northwest Territories, Yukon): 23.3%
  • British Columbia: 41.1%
  • Prairies (Alberta, Manitoba, Saskatchewan): 37.4%
  • Ontario: 38.7%
  • Maritimes (New Brunswick, Newfoundland and Labrador, Nova Scotia): 50.6%

The rate of resolution by negotiation in the maritimes is astonishing at more than half of lawyers’ files. British Columbia sits in second place with two out of five files resolved through negotiation, followed closely by Ontario.

Mediation is popular in British Columbia and Ontario, but less so in the north, the prairies and the maritimes, perhaps because of smaller populations or a smaller number of trained mediators:

  • North: 10.0%
  • British Columbia: 25.5%
  • Prairies: 17.9%
  • Ontario: 24.8%
  • Maritimes: 10.0%

I was surprised to see relatively low rates of resolution through collaborative settlement processes, as it seemed to me that collaborative processes are more widely used in British Columbia and Alberta, but I wasn’t terribly surprised to see the low rate of resolution through arbitration. Arbitration has been widely accepted by the Ontario family law bar, and is becoming more accepted in British Columbia as a result of it’s new family law legislation; in other provinces arbitration isn’t used at all.

The relatively high rate of settlement through pretrial court processes, however, reflects my own experience as a family law lawyer. Quite often litigation is commenced not because a trial is anticipated but in order to deal with urgent problems, compel document disclosure, signal a party’s sincerity and commitment to a particular position, or move settlement discussions along. Judicial settlement processes, such as Judicial Case Conferences and Settlement Conferences in British Columbia or Judicial Dispute Resolution hearings in Alberta, are extraordinarily effective ways of getting past the stumbling blocks to settlement. Quite often the judge’s considered opinion of the likely outcome or of the merit of a party’s case is enough to modify unreasonable positions and encourage settlement.

By region, lawyers reported that their family law cases were settled by pretrial court processes involving a judge as follows:

  • North: 33.0%
  • British Columbia: 25.8%
  • Prairies: 21.1%
  • Ontario: 28.2%
  • Maritimes: 21.6%

Finally, the rates of resolution by trial, which I, and I believe most lawyers, view as an option of last resort, were wonderfully low. The rate of resolution by trial was higher than resolution by arbitration but about the same as resolution through collaborative processes, and only a fraction of the rates of resolution by lawyer-involved negotiation and pretrial conferences. By region, lawyers reported that their family law cases were settled at trial as follows:

  • North: 4.4%
  • British Columbia: 10.0%
  • Prairies: 5.4%
  • Ontario: 7.6%
  • Maritimes: 5.9%

Here British Columbia is a surprising outlier with a rate of resolution by trial significantly higher than everywhere else except perhaps Ontario, which had the next highest rate of resolution by trial. However, bearing in mind that the people who need to hire a lawyer to deal with their family law dispute generally have fairly complex and sometimes intractable problems, an overall rate of resolution by trial of 10.0% and 7.6% isn’t bad. Breaking things out by province, however, Alberta had the lowest rate of resolution by trial at 3.8% (what an incredibly low number; that’s less than 1 in 25 of lawyers’ family law files!) and Saskatchewan the highest at 12.9%.

These numbers are very reassuring. They suggest that family law lawyers emphasize dispute resolution processes other than trial in their practices, and tend to resolve their files primarily through lawyer-involved negotiation, judicial conferences and mediation. The relatively low rates of resolution through collaborative processes are explained, I think, by the facts that collaborative practice is well established in some provinces but is still developing in others and that not all family law disputes are amenable to this sort of intensive, dialogue-based process. The low rates of resolution through arbitration are explained by the different legislative treatment of non-commercial arbitration across Canada and the legal cultures that have developed as a result. In Ontario, arbitration is widely accepted and entrenched in family justice; in British Columbia, however, arbitration has just moved onto the scene as a result of its new family law legislation.

From an access to justice perspective, these numbers suggest that people are better able to afford counsel to manage their cases from start to finish as so few cases wind up being resolved through costly trials. However, you have to be able to afford counsel to begin with to enjoy the luxury of resolution other than by trial, and, as we know from research previously published by the Institute, settlement short of trial is significantly less likely in cases where one or more parties are without counsel than if all parties are represented by counsel.

At the end of the day, these data reflect very well on lawyers’ approach to their clients’ cases. However, clients must still be able to afford the services of counsel or they will, more likely than not, face the trial counsel would have helped them avoid.

A note about the data

The greatest number of responses to this question were received from Alberta (about 28 on average), British Columbia (about 38) and Ontario (about 13); all other provinces and territories yielded 10 or fewer responses. As a result, I have lumped the data together by region in an effort to produce more meaningful numbers, giving responses as follows:

  • North: range of 5 to 6 respondents
  • British Columbia: range of 5 to 41
  • Prairies: range of 35 to 44
  • Ontario: range of 11 to 15
  • Maritimes: range of 13 to 16

The survey received no responses from judges and lawyers practicing in Nunavut or Prince Edward Island. A small number of responses were received from Quebec practitioners; I have excluded these responses on the ground that Quebec’s civil law system is not readily comparable with the common law system used throughout the rest of Canada.
This piece originally appeared on Access to Justice in Canada.