Judges should … judge
By Gary Joseph
Managing Partner, MacDonald & Partners LLP
In family law, the desired method for the resolution of disputes is by way of non-conflictual negotiation, mediation or collaborative law. The court process exists and should exist now for the small minority of cases that do not resolve, or within which the level of conflict is such that a judicial determination is necessary.
In Canada, judges are appointed. We have rejected the system fairly prevalent in the United States for the election of judges. Judges at all levels of the courts in Canada apply to be appointed and are subject to a rigorous level of review and (some) political maneuvering (this more so at the federal level). Those who seek such appointments are applying to be independent adjudicators of societal disputes whether criminal, civil or family law. Most (but not all) have legal backgrounds that prepare them for this task (that of judging).
Members of the public are familiar with the traditional role of the judge. He/she hears evidence and/or submissions from dueling parties and then decides cases as presented. Judges are the present day Solomon’s of our society. I suggest, however, that the public would be somewhat surprised to learn that, at least in family law, this is not what judges do for the most part. Family law rules and procedures across the country have fundamentally altered the role of the judge such that adjudication is secondary to negotiation/mediation.
In the family law context, most of the time in court leading up to a trial (only experienced if all else fails) is spent in informal process involving discussions, meetings, negotiation and mediating with the assistance of the judge. The title of the process differs across the country from case conference, settlement conference to judicial mediation, but the process is at all times similar; the judge is engaged in a settlement type experience involving the parties and their counsel seeking resolution on a consensual manner.
Many judges appointed today bring skills to the bench that are helpful to this type of process but most do not. There is very little specific training before one starts the task of “judging.” Further, there has grown a large group of legal practitioners who are trained mediators. Judges who are experienced in adjudication often are neither trained nor skilled in what is a most different process. This can result in unsuccessful or worse (in my view) repeated court attendances for unnecessary and unhelpful conferences aimed at settlement. The failed process can frustrate clients and lawyers alike and can result in a client depleting his/her litigation fund and thus becoming one of the many “self reps” (those acting as their own lawyers) in the court system (a very undesirable result for client and court).
I say. “Let judges judge!” Let’s approach the new more meditative world of family law as follows:
1. Those cases that result in litigation should be quickly triaged;
2. High conflict cases should be streamed to full case management with experienced family law judges who can move the matter quickly forward to an adjudicated resolution (with a family law judge judging);
3. Those cases that appear open to resolution within the court system should be streamed to a dispute resolution process staffed by individuals specifically trained in ADR (alternative dispute resolution), techniques not judging.
By taking this approach the results would be immediate:
1. High conflict cases would be adjudicated sooner. Judges’ time, presently at a premium, would be now exclusively devoted to judging (the task they applied to do);
2. Less conflictual cases would be engaged by trained (and likely) less expensive specialists in task-focused resolution;
3. Clients would be better able to manage their litigation budgets without the necessity of wasting countless dollars in conferences that achieve little;
4. There would thus be less “self reps” in the system;
5. There would be more settlements of cases within the court system.
Let me conclude by noting that these thoughts are not meant as a criticism of the judiciary, many of whom perform their present tasks within family law admirably. More so, I seek a system of trained specialists available to ease the pain of the court process, make it quicker and less expensive.
Believe it or not, this is coming from a lawyer who makes his living within the current system; this would benefit counsel too!