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Self-represented litigants deserve a better system — What about mediation? | Nicole Maylor

Friday, August 28, 2020 @ 3:43 PM | By Nicole Maylor

Nicole Maylor %>
Nicole Maylor
Statistics show that 50 per cent of litigants in family, civil and appellate courts across the country, and up to 80 per cent of litigants in urban areas, are self-represented litigants (SRLs). While the number of SRLs continues to rise, the legal system has yet to properly accommodate their needs and set them up for success.

As I reflect on this reality, a promising solution comes to mind: alternative dispute resolution (ADR). SRLs deserve a fighting chance. Let’s encourage an informal, flexible and guided approach. Let’s consider mediation.  

It is no coincidence that the solution I propose, to urgently change the manner in which SRLs engage with our court system, comes at a time when we are seeing other parts of our legal system, notably our criminal law system, failing many users.

From the killing of Chantel Moore in New Brunswick, to the heavily circulated video of police brutality against Chief Allan Adam in Alberta, the reality that the criminal justice system was not made to protect all people is cut from the same cloth that adversely impacts SRLs in Canadian courtrooms. The legal system must be adjusted to accommodate many of the people that must use it.

Difficulty navigating the legal system is made worse by cuts to legal aid. Many SRLs are from marginalized communities who have difficulty accessing legal assistance in the first place. As a result, more and more SRLs are entering courtrooms alone. Unfortunately, SRLs fail to understand and abide by strict court procedures and rules. When the system feels foreign, justice seems less accessible.

Further, SRLs are ill equipped to oppose seasoned lawyers who benefit from legal education and courtroom experience. Going into a courtroom as an SRL can lead to serious injustices.

The problem seems clear, right? Our Canadian legal system does not support many of the people who need it most.

With a clear problem, I propose a clear solution. Instead of enforcing a system that allows SRLs to fumble through court proceedings unassisted, we must foster a system where people, especially low-income SRLs, can choose a legal process that is best suited for their circumstances. This would mean having access to the full gamut of legal resolution services, but prioritizing ADR, specifically mediation. As more and more SRLs navigate the Canadian legal system, mediation can accommodate SRLs to seek just results.

Mediation as an ADR tool can give more power to the people affected by legal conflict. First, mediation sessions are more informal compared to traditional adversarial court proceedings. As a result, SRLs are not overburdened by an abundance of procedural and evidentiary rules impeding them from telling their story.

Feeling heard is a crucial consideration in promoting access to justice and is made easier when SRLs can avoid much of the paperwork and procedural aspects of entering the courtroom. As Martha Simmons aptly points out in her article “Fairness and Formality – Mediation Advocacy and the Self-Represented Disputant,” mediation could be more accessible to non-lawyers due to the “inherent flexibility” of the process.

Second, mediation is more advantageous when it comes to cost. ADR may be preferable to SRLs with lesser means by allowing them to engage with trained mediators, while cutting out lawyer fees, and still arriving at a just result. Of course, for complex matters, engaging a lawyer will likely be more helpful, but for simpler issues, cost cutting is key.

Mediation has the potential to be less adversarial, with a neutral mediator assisting in the parties’ endeavour which can be more favourable to SRLs. Beyond cutting costs, ADR creates goodwill and is a faster process overall.

Third, mediators focus on fair results for all parties. Jennifer Leitch, an adjunct professor at Osgoode Hall Law School and the University of Toronto Faculty of Law, points out in her paper “Coming off the Bench: Self-Represented Litigants, Judges and the Adversarial Process” that in addition to the formal role of judges, mediators can be more engaged in the process to ensure that parties feel as if the process and outcome is fair.

Mediation is helpful because it promotes collaboration between the parties throughout discussions, which can also have a positive impact on the parties’ relationship outside of mediation. This is especially important for family law cases where the well-being of children is key and parties will likely continue to interact.

This suggestion raises a question: if mediation is better for SRLs, why aren’t we using this method more already? There are many other reasons that explain why mediation has yet to be utilized to its full potential. For instance, core law school curricula do not give enough deference to ADR in practice, and the public is largely unaware of their ability to engage in ADR processes.

Further, the pros of using mediation are also accompanied by the cons of overarching themes of power indifferences, reluctant opponents and questions about the strength of a non-binding decision. Mediation might not be the solution for all parties using the legal system and these disadvantages should be considered.

However, for many, mediation can bring forth a faster and simpler resolution of conflicts and allow parties a greater role in defining what justice should look like in their given case. Surely, making alternative processes available and mainstream will assist in removing barriers hindering access to justice for SRLs.

SRLs deserve a fighting chance to solve their legal dilemmas in a system that caters as much to the needs and skills of regular people as it does to trained professionals. As the number of SRLs grows, the legal system must promote alternative processes, such as mediation, to allow people to solve their issues in more meaningful, simpler and lasting ways.

This article is the sixth of a series on self-representation. The first article: Law schools must teach about self-represented litigants | Cassandra Richards; second article: Immigration detention: Lack of legal representation | Madeleine Andrew-Gee; third article: COVID-19 is modernizing courtrooms — but for whom? | Kendra Landry; fourth article: What to think about when thinking about self-represented litigants | Joel Miller; fifth article: Access to justice for self-represented litigants post-COVID-19 | Savleen Sur.

Nicole Maylor is a 4L student at the McGill University faculty of law. She is interested in employment and labour law, international labour standards, human rights and access to justice. Maylor is concluding her summer student position at Fasken LLP. These views represent the views of the author and not of Fasken.

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