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British Columbia passes law to Encourage use of Online Dispute Resolution instead of Small Claims Court

19 Feb

The B.C. government is still pursuing its online arbitration and  online dispute resolution initiative. It unveiled plans almost two years ago to take small civil claims and condominium disputes out of the courts and put them online. The B.C. government is putting a task force together to bring this initiative to fruition.

“Both individuals and business owners will find this a convenient and affordable way of reaching agreements,” B.C. Attorney General Shirley Bond said in a statement. “Few people want to go to court to solve a legal dispute, which can be costly, intimidating and time consuming. A tribunal offers an innovative alternative to settling a dispute in a faster, more amicable way.”

The government is hoping to launch the online arbitration infrastructure in 2014 as a way to cut legal fees and travel costs for parties as well as to reduce the backlog of cases in the courts.

With the Civil Resolution Tribunal Act, the B.C. Ministry of Justice is predicting a 60-day dispute resolution process, compared with the 12 to 18 months it can currently take for cases to wind their way through the province’s Small Claims Court. The tribunal will be available for disputes worth up to $25,000 where both parties agree to participate. However, it will be mandatory in certain types of property disputes involving condominiums.

The Act mandates that disputing parties are to represent themselves in the tribunal proceeding, however provision is made for legal representation in certain circumstances.

The tribunal will progress in four stages, with participants moving to the next stage only if they are unable to reach an agreement:

  1. Self-Help Dispute Resolution using online, interactive tools with information, tips and templates to help the parties reach a settlement;
  2. Supervised Negotiations Online;
  3. Direct Intervention by a Case Manager to Facilitate Settlement; and
  4. Online Tribunal Hearing where a final decision is made – the order can be filed with the court giving it the same force and effect as if it were a judgment of that court.

Our Civil Justice System is in Disrepair

12 Dec

By most accounts our civil justice system seems to be in disrepair. Here are some insightful comments from experts who are intimately familiar with the issues being faced by those seeking justice:

There is significant agreement that the civil justice system is beleaguered by problems of cost, delay, and impaired access…We are talking about being able to afford to stay the course and not being forced to fold because the ante is too high…Surveys show a strong consensus that cases are being settled because of cost concerns…At least as to small cases, surveys show a strong consensus that litigation costs are disproportionate to the value of the case…There was also a very strong consensus that delays cost money…There is, thus, growing concern that the court system is pricing itself out of reach of ordinary Americans, that access to justice is not an issue confined to the indigent.

Rebecca Love Kourlis, Executive Director of the Institute for the Advancement of the American Legal System at the University of Denver. From her keynote address, “Civil Justice at a Crossroads” at Pepperdine University School of Law in April of 2010.

We are witnessing a staggering number of individuals trying to navigate an increasingly complex civil justice system without any or adequate legal assistance and feeling increasingly alienated from the system…Regrettably, we do not have adequate access to justice in Canada. We have better access than in many countries, but it is still not what it should be. Among the hardest hit are the middle class.

Middle Income Access to Justice, 2012, book written by:
Michael Trebilcock (Chair in Law and Economics, Faculty of Law at the University of Toronto)
Anthony Duggan, Professor of Law, University of Toronto
Lorne Sossin, dean of Osgoode Hall Law School

 

Litigation is expensive, so much so that it is not cost effective to litigate smaller cases. Plaintiffs with smaller cases must either find some way other than litigation to resolve their disputes, or leave them unresolved.

 ABA Section of Litigation – Member Survey on Civil Practice: Detailed Report December 11, 2009

A few years ago, the World Bank conducted a study to determine what accounts for the success and wealth of a nation. As explained by the lead economist in the study, the confidence needed to promote investment comes from “the efficiency of the legal system and how many days it takes to get to trial, how many days it takes to get a decision once you’re at trial, the lack of corruption, the degree of transparency—the whole set of issues that go into” what is called the rule of law.

Mark S. Cady, Chief Justice of the Iowa Supreme Court, 2012 State of Judiciary report   

THE CURRENT STATE OF AFFAIRS IN OUR COURTS:

  • The number of civil cases pending more than three years is now about 19,000 (at March 31, 2012).
  • The number of civil cases pending in court was 270,839 in 2011.
  • The number of civil cases filed in U.S. District Courts in 2011 was 289,252. That is 427 civil filings per authorized judge.
  • The December 31, 2011 statistics for the median time interval from filing a case until disposition of the case for those that eventually went to trial was 23.6 months.
  • For those cases settled prior to trial that had reached the pretrial stage it was 13.6 months.
  • For those cases that were settled or otherwise ended prior to pre-trial hearings the median time interval was 6.2 months.

Annual Report of the Director: Judicial Business of the United States Courts, 2011

There is an old legal maxim: “Justice delayed is justice denied

 

The Huffington Post: In Our Courts ‘Justice’ Is Bought

9 Dec

The Huffington Post

 

By Lance Soskin
President, eQuibbly

There are few elements more important to a free and democratic society than an open, fair and accessible justice system. This is never more apparent than when your liberty or livelihood is at stake.

The executive director of The Institute for the Advancement of the American Legal System, Rebecca Love Kourlis, summed-up nicely the state of the American justice system when she said, “If you get in a car wreck, and there’s an argument about who should be paying damages, your assumption is that you can go to court to have that case resolved. The truth of the matter is that’s probably the last place you want to be, because the fees and the costs will ultimately be more than your car is worth, even if you drive a really nice car.”

Due to the nature of our adversarial justice system, it’s more often than not going to be the party with the high-priced attorney who wins in court rather than the party with the more meritorious case. Litigation is a multi-billion dollar industry that favors the wealthy. Much of that money simply lines the pockets of attorneys who charge on average between $300 and $700 an hour to tell us what the law is and how it can be manipulated in our favor to vanquish our opponents. That’s great for the small percentage of Americans who can afford a skilled lawyer, but it leaves the rest of the population at a significant disadvantage.

Even if you have a legitimate case, if your opponent has a lot more money to spend on high-priced attorneys who employ delay tactics, as Kevin O’Leary of Shark Tank and Dragon’s Den fame would say, either “you’re going to be squashed like the cockroach you are”, or those high-priced lawyers are going to have you tied-up in hearings and motions and pre-trial discovery for so many months or possibly years that you will go broke before you ever get the chance to present the full merits of your case.

Given the complexity of our laws and legal procedures, if we want any hope in hell of protecting our rights, attorneys are a necessary evil. But why should the average person or business owner need to pay tens of thousands of dollars in legal fees to get the justice they’re due? If “ignorance of the law is no excuse” when it comes to determining liability or culpability, would it not make more sense for the government to ensure that the laws and procedures can easily be understood by the average person? Shouldn’t justice, in the true sense of the word, be available to everyone?

Although America prides itself on having a fair and accessible government-run justice system, the truth is that for most of us, justice is neither fair, nor easily accessible. The American justice system faces serious issues that are not easily resolved and will not be resolved any time soon without drastic reform. Most of us want, and in fact need, options that are cheaper, quicker and less complicated than going to court or hiring an attorney to fight all our battles. We need to make better use of alternative dispute resolution options such as mediation and arbitration. Given our shrinking budgets, both governments and personal, what other options do we have?

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