Articles 2020

In this series of articles, I will explore the interesting cultural shift occurring within the legal profession in Ontario between the adversarial norms of litigation, and cooperative processes such as alternative dispute resolution. In this second article, I will discuss how adversarial legal culture forms a critical component of a lawyer’s professional identity, and what philosophies are embedded in our legal culture as a result.

As the world around us has changed, so too has the way family dispute resolution services are delivered.

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” - Abraham Lincoln

I am always hungry. If I am not eating then it is likely that I am thinking about food – unless I am mediating. It has become a problem. Allow me to explain.

When parties and their lawyers are overly optimistic at mediation, it can lead to poor decision making and unnecessary risk taking. Learning to be mildly pessimistic can be beneficial.

At the beginning of every mediation, I tell the participants about the Five Key Reasons they should consider settling their legal dispute instead of taking it to Court. In my previous posts, I discussed four of the five of those reasons: risk, time, cost and privacy. Finally (and fittingly), the last Key Reason to settle is finality.

It should come as no surprise that lawsuits commenced in public courts are, for the most part, public. In Ontario, court documents filed in civil proceedings are, generally speaking, public record (and are rarely sealed by court). Written decisions rendered by the judges at the end of trials or other types of hearings are also public record and are increasingly available on-line to the public at no charge.

Lawsuits can be costly. Parties who are billed by their lawyer on an interim basis already know this. However, even if legal fees are deferred until some future event or are contingent or dependant on the party recovering money at the end of the case, a lawsuit can still prove to be costly once the event triggering the obligation to pay a fee occurs.

At the beginning of a mediation, I discuss with the participants five key reasons why they should consider settling their civil dispute at mediation instead of proceeding to court: Risk, Time, Cost, Privacy and Finality. In this post, I discuss risk, or, more precisely, the avoidance of risk as a reason why a mediated solution is preferable to Court.