Participatory Justice: Reflections on the Dispute Reflections on the Dispute Prevention & Resolution (DPR)

Marie-Claire Belleauf tit l i à l lté d d it d l’ i ité lProfesseure titulaire à la Faculté de droit de l’Université Laval

February 2012

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AGENDAAGENDA

ContextConflictConflictLegislative ReformsLegislative ReformsA Vast « Offer of Justice » & the « MIDPR »A Vast « Offer of Justice » & the « MIDPR »

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CONTEXT

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Th t f ti f th j i tThe transformation of the jurist

4The gladiator The pacifistThe gladiator The pacifist

E t t d i t lEstrangement and intoleranceThe judicial system is characterized by: The judicial system is characterized by: › Public estrangement &› Changes in the culture of citizensTolerance and respect in the legal milieu Tolerance and respect in the legal milieu have changedThe image of the « lawyer » as gentlemen of rights is characterized by

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gentlemen of rights is characterized by qualifiers such as « dishonest », « interested » « money driven » 5« interested », « money driven »

Th f i d t tiThe profession and expectations

« One size » judicial system fits « all » ? : › The weathlyThe weathly› The poor› The fighters› The fighters« One size » justice does not meet the needs

f th itiof the citizensIncreasing phenomenon of citizens not

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represented by counsel in the court systemCitizens have lost trust in the judicial system 6j y

The barometer of the professionsThe barometer of the professionsPercentage of Canadians who trust …Profession 2010 2009 2008 2007 2006 2005 2004 2003

Firefighters 97 96 98 97 96 97 97 96

Nurses 96 91 94 94 95 94 95 94

Doctors 91 88 94 87 89 89 89 89

Farmers 90 85 95 92 92 91 91 91Farmers 90 85 95 92 92 91 91 91

Teachers 86 80 94 89 88 88 88 88Police officers 72 72 76 84 81 83 79 80

Notaries 78 71 90 73 75 71 72 71Judges 65 59 77 74 78 72 75 73

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Bankers 40 31 59 68 72 65 67 70

Priests 40 30 47 61 64 65 65 657

Lawyers 29 26 41 52 48 45 44 48

Results of a survey for theQuébec Ministry of Justice (summer 2006)

Profile % of trust

Never went to court 63Went to court 56Went to court 56Went to court as witness 58Went to court as party 55Went to court as party 55Won their case 64

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Loss their case 47Global % 59 8

Access to justice: Access to justice: most frequent complaints

81% : citizens feel uncomfortable(83 in 1993)79 % : high cost of justice(62 in 1993)76 % bl d l76 % : unreasonable delays(80 in 1993)70 %: tribunals are mazes70 %: tribunals are mazes(n d. in 1993)70 %: difficulty in not being represented by counsel

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70 %: difficulty in not being represented by counsel(n d. in 1993)60 % : loss of control of the problem 960 % : loss of control of the problem(62 in 1993)

“The Vanishing Trial” Galanter 2004or “décrochage judiciaire”

American studiesTrial numbers continue to drop year after yearTrial numbers continue to drop year after yearOnly 1,8% of the cases go to trial in the USA and in Canadaand in Canada› In Québec: 7 % ?Fewer trials, yet as many « judge’s-days »Fewer trials, yet as many « judge s days »Pre-trial motions are increasingWhen trials are held they are:

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When trials are held, they are: › Longer› More expensive 0› More expensive

Files Opened,Superior Court

Québec Division (total)

1067712000

8216

10677101129038 9189 8762 8281 8138 77338000

10000

n c

ases

mily)

70485684 5619 5840 5879 5872 6129

7733

6000 Civil

Familyber

of

open

civ

il &

fam

2000

4000 Family

Num

b (c

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02001 2002 2003 2004 2005 2006 2007 2008

Years

Number of open casesin Québec Civil Law Tribunalsin Québec Civil Law Tribunals

1989-2008( / )1989-1993

(1)1994-1998

(2)1999-2003

(3)2004-2008

(3)(4/1)

Cour of Appeal 14 473 11 886 8 795 7 046 48,7

Superior Court (civil)

199 479 157 159 106 228 74 441 37,3( )Superior Court (family)

199 785 197 052 179 720 155 729 77,9

P i i l C t 449 672 318 659 287 118 258 592 57 5Provincial Court (civil)

449 672 318 659 287 118 258 592 57,5

Provincial Court 228 277 205 167 147 294 129 177 56,6

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(Small Claims)

Total Trial Level

1 077 213 878 037 720 360 617 939 57,4

Grand total 1 091 686 889 923 729 155 624 985 57,2

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Costs to “settle” litigationgExamples:

R di C d G it i [2002] RRA (C A )› Radio-Canada c. Guitouni [2002] RRA (C.A.)Plaintiff received 164 108$ in damages for injury to reputationreputationCosts of litigation: 540 000$ (honoraries, expertises, judicial stamps, stenography, etc.) 6 years of procedures - 55 trial daysDeficit: 375 892$

› Trudeau c. Pépin, Létourneau J.E. 2003-2216 (C.S.)Plaintiff received 80 000$ for firing without just and

ffi i t d i j t t ti

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sufficiant cause and injury to reputationCosts of litigation: 140 000$ Déficit: 60 000$Déficit: 60 000$

Source: Rapport du Comité ad hoc sur les frais. Barreau de Montréal. 2004

Access to Education:› Autonomy Responsibility› Autonomy, Responsibility› Critical mind: calling into question the judicial system

Challenges to Authority:Challenges to Authority:› Révolution tranquille, May 1968

fMe, Myself and I:› The Importance of Emotions

The culture of the instantaneous:› Internet, Cellular, E-Mail

Source: Me Dominique Bourcheix15

Change is needed for the LegalP f i tProfession to:

Recognize that expertise based primarily on rights is Recognize that expertise based primarily on rights is generally brings insufficient added value to clients Put negotiation and agreement at the heart of the Put negotiation and agreement at the heart of the professional relationship between jurists and clientsDevelop a close partnership with the client in a Develop a close partnership with the client in a relation of equivalence (as opposed to hierarchy) Involve the client in the resolution of his or her problemsImprove the experience of citizens in relation to

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legal services

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Law’s foundations & the legal vocation g

Law as the guarantor of social orderLaw as the guarantor of social orderLaw as pacifier and not as war tool Transform the image of the « gladiator » intoTransform the image of the « gladiator » intothe pacifistParticipatory justice is inscribed in the spirit Participatory justice is inscribed in the spirit of the legal vocation: “empowerment”› Act as partners to clients› Act as partners to clients› Assist our clients in their choices, in their decisions

for themselves, in assuming his or her part of the

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g presponsibility in relation to his or her own decisions

› Search truly for justice and equity for all 7› Search truly for justice and equity for all

B ildi t diti l killBuilding on traditional skillsTraditional skills of advocats remainTraditional skills of advocats remainfundamentalJurists must bring added value to the Jurists must bring added value to the negociationD i ti biliti d Draw on existing abilities and competences to produce creative, i ti t d l tiinnovative, custom made solutionsObjectives :

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› To better respond to citizen calls for justice› To make available a vast « offer of justice » 8

Fin de siècle transformationsEmergence of Mediation Programs › Family mediation: mandatory information session› Small claims mediation› Compulsary Pretrial Mediation in Ontario› Many Canadian programs force mediation early in › Many Canadian programs force mediation early in

the judicial processIncreased role of judicial conciliationj› Civil Procedure Reform of 2003: Conférence de

règlement à l’amiable (CRA)› TAQ (Administrative tribunals), Cour du Québec › TAQ (Administrative tribunals), Cour du Québec

(Provincial court), Cour supérieure (Superior Court) and Qubec’s Court of Appeal offer judicialconciliation (CRA)

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( )› The increased importance of case management:

proactive role of judges› Members of the judiciary are major actors in the 9› Members of the judiciary are major actors in the

introduction and use of modes of dispute preventionand resolution (DPR)

N F f I t tiNew Forms of Intervention

Community mediation (neighbourhood)Organisational mediation (psychologicalOrganisational mediation (psychologicalharassment in the work place)Restorative justice in Criminal Law inspired by:Restorative justice in Criminal Law inspired by:› First Nations

li Ci l› Healing CirclesPrivate Arbitration

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CONFLICT

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D fi iti f fli tDefinition of conflictConflict results in behavior in an individual or Conflict results in behavior, in an individual or group, which, for another person or group, isunacceptable and requires a responseunacceptable and requires a responseThere is conflict as soon as a person: › causes a damage to another person ; › causes a damage to another person ; › expresses a grievance in relation to another person.› adopts a behavior considered deviant for anotheradopts a behavior considered deviant for another

person; › submits another person to a form of social control.

22Source: Commission du droit du Canada

« De la justice réparatrice à la justice transformatrice » j p j

D fi iti f fli t Definition of conflict (2)

Conflict can have individual or collective Conflict can have individual or collective dimensions C fli t b d f bj ti Conflict can be measured from an objective or from a subjective point of view. Conflit stems from definitions and interpretations of ‘good’ and/or ‘bad’ thatare specific to each individualConflict can also result in positive and/or

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p /negative outcomes

3Source: Commission du droit du Canada

« De la justice réparatrice à la justice transformatrice »

Ob ti C fli tObservations on Conflict:It is natural and inherent to all relations It is natural and inherent to all relations Its resolution is important for the maintenance of healthy and harmonious relations with: associates, y ,partners, work colleagues, business relations , family, neighbours…Relational ruptures need to be successful resolved to continue respectful acquaintance Objective = imagining means of:› Preventing conflicts

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› Resolving conflictsInstil a culture of participatory justice within the p p y jlegal community and in society as a whole

Dispute Prevention and Resolution (DPR)Dispute Prevention and Resolution (DPR)INTERVENTION

Modes of DPR

Conflict in the relationInterpersonal relations

Litigation (law)/Specialized conflict

L l tLegal rapports

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The control of the case by the partiesThis control of the case is limited by the power, and eventhe duty, of the tribunal (4.1 C.p.c.): › to see to the orderly progress of the proceedingsand› to intervene to ensure proper management of the cases

This power includes the rule of proportionality (4.2 C.p.c.)p p p y ( p )The judges must play a role in applying the principle of conciliation (CRA)

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conciliation (CRA)

The control of the cases by the parties, whilerespecting the rules and the delays of the respecting the rules and the delays of the Code of Civil Procedure &the powers and duties of judges in ensuringthe powers and duties of judges in ensuringthe proper management of cases The obligation of procedural good faithThe obligation of procedural good faithOralityP ti litProportionalityJudicial Conciliation : Conférence de règlement à l’ i bl (CRA)

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à l’amiable (CRA)

Control of examination on discovery Control of examination on discovery Orders to safeguard the rights of partiesAb id t f d l i ti t i tit t Abridgment of delays in motions to institute proceedings in emergency situations S litti f ti Splitting of action Case management: ordinary and particular

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323

This Code establishes the principles of civilThis Code establishes the principles of civiljustice and governs, in harmony with the Charterf h i ht d f d (R S Q h tof human rights and freedoms (R.S.Q., chapter

C-12), the Civil Code and the general principlesof law, the procedure applicable to private modesof dispute prevention and resolution when it is notp potherwise determined by the parties, theprocedure applicable before the courts as well asprocedure applicable before the courts as well asthe procedure for the execution of judgments andf j di i l lfor judicial sales.

This Code is designed to enable, in thepublic interest, the resolution ofinterpersonal collective or societal disputesinterpersonal, collective or societal disputesthrough appropriate, efficient and fair-minded processes of civil justice thatencourage the parties to participate inencourage the parties to participate inpreventing and resolving disputes…

BOOK IBOOK IGENERAL FRAMEWORK OF CIVIL PROCEDURE

TITLE IPRINCIPLES OF CIVIL PROCEDURE APPLICABLE TO PRIVATE MODES OF DISPUTE PREVENTION AND RESOLUTION

P i t i il j ti i f d d i t d f di t ti dPrivate civil justice is founded on private modes of dispute prevention andresolution that are chosen by mutual agreement by the parties concernedin order to prevent an eventual dispute or resolve an existing one.in order to prevent an eventual dispute or resolve an existing one.

The principal such modes are negotiation between the parties, andmediation and arbitration, which bring a third person into play to assistthe parties. The parties can resort to any other process that suits themand that they consider appropriate whether or not it borrows from theand that they consider appropriate, whether or not it borrows from thenegotiation, mediation or arbitration models.

Parties must consider the private modes of prevention and resolutionbefore referring their dispute to the courts.

Parties can prevent or resolve a dispute on thebasis of norms or criteria other than legal normsor criteria, subject to respect for human rights and, j p gfreedoms and compliance with other public policyrulesrules.

If the parties are unable to resolve the disputep pthrough a private process, they can refer it tothe courts subject to the provisions governingthe courts, subject to the provisions governingarbitration.

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A Vast« OfferOffer of Justice of Justice »« OfferOffer of Justice of Justice »

Prevention of disputes Resolution of disputes

Negociation Trial

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FoundationsFoundations: : The communication of the The communication of the needsneeds and and interestsinterests of of eacheach

The The relations relations –– and not the and not the conflictconflict ––atat the the heartheart of the of the preoccupationspreoccupations

A Vast Prejudiciary« Offre of Justice »« Offre of Justice »

Prevention of disputes Resolution of disputes

Partnering Facilitation Mediation

Collaborative

ArbitrationNeutralEvaluation

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Law

Negotiation

Evaluation by a Third Party

A Vast Judicial« Offer of Justice »

Judicial ConciliationConférence de

Case M t

TrialOut of Court Conférence de

règlement à l'amiable (CRA)

ManagementNegotiationbetweenLawyers

43Negotiation

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Evaluation by a Third Party

North RightsNeedsType of intervention

Psychosocial DPR Based on Autority

Legal

Finality Growth Integration Settlement Decisionrmen

t

a y G oSupport

eg a oof the VIBES

Se e e ec s o

Help Relation Therapy Expert’s Counsel

Empo

wer

Communicationand facilitation

FacilitationCouple’s Therapy

Coaching of manager

FacilitationJudiciary

Penal

E

Mediation 11 Mediation

Approaches

Based on settlementEvaluative

Conciliation Conciliation JudicialWest East

Conciliation Conciliation Judicialconciliation

Representationby lawyers

CollaborativeLaw

Employer/Union Negotiation by lawyersy y

ExpertisePsychosocial

Neutral Evaluation

Mini-trialRèglementexécutoire

ority

Decision by a Third Party

Arbitration JudicialDecision

SouthAut

tho

Participatory justice aims at offering avenues so thatcitizens can determine themselves their path to justicep jby participating in the process and in finding solutionsinstead of having a third party impose one on them.g p y p

Types of participation:Types of participation:› The parties participate in designing the solution› The parties participate in determining process to

which they will voluntarily submit

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VoluntaryGood FaithTransparencyConfidentiality Empowerment› Recognize each person’s capacity to take charge of the situation › Believe in the potential of individuals to take the best decisions for › Believe in the potential of individuals to take the best decisions for

themselvesParticipation› in finding solutions› In determining the process to which to submit

Consequence: A Change of Expectations

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Consequence: A Change of Expectations

CollaborationExchangesExchangesPartnership (≠ expertise)Relations of Equivalence (≠ hierarchy)

Consequences: Change of paradigmChange of paradigmChange of role for both jurists and citizens

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Objectives:› A transformation towards cooperation before trialp› Promotion of the notion of « spirit of justice »

The addition of the modes of dispute prevention and resolution( )(DPR)Principles common to the judicial and the modes of DPR: F lFor example:› Conciliation› Cooperation› Cooperation› Good Faith› Proportionality› Proportionality› Orality

Promote the continuum of a vast « offer of justice »

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Promote the continuum of a vast offer of justice

Wh t i t f ti i t j ti ?What is next for participatory justice?

Facilitate the debates around the necessary changes of the legal profession from all changes of the legal profession from all perspectives Bring changes to legal training at the university and g c a ges o ega a g a e u e s y a d in professional schoolsBuild on innovations in appropriate practices to

d t th d f j ti f itirespond to the needs of justice of citizensConfront the questions posed by citizens that represent themselves in the judicial systems

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represent themselves in the judicial systems Regain a professional pride and go back a sense of legal “vocation” 9g

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