Alternatives to civil trials can save money, grief, judge says
Joel Krahn/Yukon News
Going to court for civil matters doesn’t have to be the adversarial, costly, complicated process people think it is.
That’s what Yukon Supreme Court Chief Justice Ron Veale will tell Yukoners at an upcoming talk at Yukon College this week.
“What’s happened over the last 20 years has been what I call the disappearance of the traditional civil trial,” Veale told the News Jan. 5.
Those traditional trials could take as long as three years to resolve because of the many hearings where each party would file documents and expert reports. Finally, the process would culminate in a “live-witness trial” with lengthy examinations and cross-examinations of witnesses.
“It’s very adversarial,” Veale said “It’s very long, time-consuming and very expensive. The concern is that only the richest among us can afford it, (and) that means large corporations, governments.”
The courts have turned to trials by affidavits, where each party will file sworn affidavits the judge will base his decision on.
That’s how the Peel Watershed case went through the Yukon Supreme Court in one year.
But for family law issues, where many people are self-represented and time can be of the essence, trials by affidavits can be challenging.
So the Yukon Supreme Court turned to various mediation processes in an effort to resolve more cases without going to trial.
That started in 2008 with the court doing case management conferences, Veale said.
The parties meet with the judge to set an outline of the process, like establishing a timeline for introducing evidence. That allows the parties to avoid getting bogged down in disputes over process.
In family law cases, Supreme Court judges are also relying on judicial settlement conferences.
“The parties get an opportunity to say their piece, and try to reach an agreement,” Veale said.
The meeting takes place inside a boardroom, not in open court, and the parties sit across from each other with a judge in the room.
“It’s not the lawyer’s game, it’s your game,” Veale said. “The advantage of (being) around this table (is) the parties have an opportunity to communicate.”
Sometimes it’s the first time they’ve spoken to each others since the dispute started.
“If they learn how to communicate they can eventually resolve their own problems without coming to court,” Veale said.
Those mediation processes are available when there are no issues of legal precedent at stake.
Family law cases are also often emotional, Veale said. “They’ve separated, you’re going through a range of emotions.”
Private mediation is also available, but some people prefer sessions with a judge present.
In a case where the parties want the judge to render a decision but avoid a trial, they can opt for binding judicial settlement conferences, the equivalent of binding arbitration.
“You’re in effect getting your day in court without going through all the adversarial process,” Veale said.
At the Yukon College talk, Veale will also speak about what self-represented litigants can do in courts.
Across the country, 40 to 60 per cent of all litigants in civil matters choose to represent themselves.
That poses its own sets of challenges and raises questions of fairness. While the courts have been working to accommodate self-represented litigants, judges always prefer to deal with lawyers, Veale said.
“They simply know the issues, they know what the rules are and what the law is.”
Outside of mediation, there are also ways for self-represented litigants to get a lawyer’s advice at lower cost, a process called “unbundling.”
A litigant will ask a lawyer to complete only a specific task, like filing an affidavit or detailing what arguments could be used in court. With hourly rates from $150 to $400, that can be the most cost-effective use of lawyers.
Not everybody goes to court to settle civil matters, Veale said, and of those who do, many reach an agreement without going to trial.
The Yukon College talk will allow people to know that “things have changed,” Veale said.
“It’s really an opportunity to increase access to justice so people know the options in front of them,” he said.
The session will take place Thursday, Jan. 12 from 5:30 to 7:30 p.m. at the Pit, inside Yukon College.