By: Malte von Anrep, QC
No dispute resolution procedure is perfect. The aim is to find the one that works the best.
Based on my fifty plus years of experience in using the courtroom litigation process I have conclude that issuing a claim in court and proceed to trial is the least efficient method to resolve a dispute and should be used only as a last resort.
I say this for several reasons, the most obvious one being the cost and time involved to reach a final result. A trial involves an adversarial process where each party goes to great lengths to point out the faults of the opposing party. The statement of claim and statement of defense or the application and answer are prepared in a meticulous fashion to avoid missing any potential claim or any potential defense, no matter how obscure or how unlikely to succeed. This process has the natural result of inflaming the emotions of the opposing party and escalating the determination to fight to the bitter end, no matter how long it takes or how much it costs.
Preparing for Civil Trail as a form of Dispute Resolution
Many interim steps are taken before the matter can be decided by a trial judge. In a commercial civil action this can involve extensive examinations for discovery where the opposing party is examined under oath to find exactly what evidence each party has and what their story will be when they give evidence at the trial. One of the easiest ways to attack the credibility of a party is if their sworn evidence at the discovery stage turns out to be different from their sworn evidence at trial. The court procedure also allows interim motions to be brought by a party to resolve some issue before trial. There could be a contested issue about where the trial should be held. Should a disputed issue be resolved by a summary judgment motion rather than having it decided after the presiding judge has heard all the evidence at trial. Courts have specific dates when short motions of no more than one-hour duration, are heard and dates when long motions, over one-hour duration are heard.
Parties must prepare detailed affidavits which have to be served and filed within specific time frames, setting out their position on the issues to be decided by the motions judge. Factums, having a summary of the facts and the applicable law each party is relying on along with a statement of what order each party is seeking, have to be served and filed. These interim steps are time consuming and expensive considering the work that the legal team must put into this process.
Process for Attempting Settlement through the Court
Before you reach trial, a settlement conference is going to take place, in a conference room, before a judge who reviews each party’s settlement conference brief. The judge listens to the submissions from the lawyer for each party, and hopefully makes beneficial settlement recommendations to the parties. However, if there is conflicting evidence advanced by the parties, often the response from the judge will be that a settlement recommendation cannot be made until the conflicting evidence is sorted out by the trial judge after seeing and hearing the witnesses give their evidence at trial. At the end of the settlement conference the lawyers must estimate how long the trial is likely to last. This information is passed onto the trial coordinator who then must figure out when a judge is available to spend the time during the few times a year, several weeks are set aside for trials to be heard.
One of the main difficulties in resolving your dispute through the trial process is the technical rules governing admissible evidence. When is hearsay evidence allowed and what weight is to be given to that evidence by the trial judge? What restrictions are there in trying to have someone recognized, by the court, as an expert, to give opinion evidence on an issue within their area of expertise? These are all time consuming and expensive issues that must be addressed.
Family Law Dispute Resolution Process
In family law disputes the trial process is even more cumbersome and frustrating. Emotions tend to be much higher than in commercial litigation. This results in parties finding it much more difficult to make calm rational decisions when they are consumed by anger and often hatred of the opposing party. The many procedural steps are again very time consuming and expensive.
Making full, voluntary and honest financial disclosure is very often the first hurdle to overcome. This may need a motion to the court for an order that the opposing party give many documents to substantiate what wealth each party had at date of marriage and date of separation. Each party has the obligation to substantiate the accuracy of their income and expenses as well as the value of their assets and the extent of their liabilities.
This can involve the aid of expensive expert’s reports where privately owned companies and businesses are involved. The same can be said where the value of property is involved, in a volatile and changing real estate market. Before a matter reaches trial a Case Conference, Settlement Conference, and a Trial Scheduling Conference must be held. Each of these steps needs extensive time and expense, for each party to prepare, serve and file a detailed conference brief with specific time constraints before the trial date can be set at an assignment court.
A case conference is one of your first attendances at the court house by the litigants and their lawyers before a dispute resolution officer or judge for exploring the chances of settlement, finding the issues in dispute, exploring ways to resolve the issues, ensuring that the parties have made full disclosure of all relevant evidence, and naming issues which require expert evidence. Admissions that may simplify the case are found. A decision is made whether questioning of the parties before trial is to take place. Finally, the date for the next step in the case. No motion for interim relief may be brought before the case conference is held except in cases involving child protection or other ‘emergency’ issues. Each party must prepare, serve and file a written summary that talks about all of the above noted issues.
A settlement conference is the second attendance at the court house by the litigants and their lawyers before a judge to explore the chances of settling the case, narrowing the issues in dispute, ensuring that disclosure of relevant evidence has been made, and where possible obtaining the judge’s opinion on the strengths and weaknesses of the claims and defences on the issues in dispute. Again, each party must prepare, serve and file a written summary touching all the above noted issues.
A trial scheduling conference is an attendance at the courthouse by the litigants and their lawyers before a judge to name what issues must be decided at trial; the names of the witnesses each party intends to call and the specific topic they will give evidence on; what experts will be called to give evidence and an estimate of how long each witness is likely to be in the witness box. Parties must describe whether they intend to give written or oral opening statements; when the parties are to exchange their proposed exhibits, trial record and case books, and to show whether any special equipment is needed in relation to audio or visual recordings. The presiding judge signs a summary of what has been discussed and decides which parts can become part of the trial record. No exhibits may be relied upon and no witnesses may be called other than was is listed in the judge’s endorsement unless a court order has been obtained, granting permission to do so. Again, each party must prepare, serve and file a written summary touching on all the above noted issues.
Alternative Dispute Resolution
By now I trust, you will agree there must be a better way to resolve disputes. And there is.
Mediation and arbitration by-passes many of the pitfalls of litigation. Firstly, the parties get to pick the person they wish to use as a mediator or arbitrator. This is a major advantage as parties can make their own enquiries of the experience and reputation of the person they choose to help resolve their dispute. If it is a family law dispute you probably do not want to choose a person that has never dealt with a family law file when they were in practice. With a mediator you can pick a time for the mediation meeting(s) that is convenient to all participants and you do not have to deal with a clogged-up court schedule. You can arrange for mediation with or without your lawyer’s participation and you are not automatically restricted to technical court rules of evidence. The parties can agree on the form of evidence and submission they wish to present to the mediator which makes the entire process less cumbersome, less expensive, and less stressful. The one drawback to mediation is that the mediator does not make the final decision. The task of the mediator is to aid the parties to come to an acceptable resolution that works for both parties. This requires both parties to have, as their objective, a reasonable solution to the problem and leave their anger, their emotions and adversarial approach at the door with a willingness to make reasonable compromises in order to achieve and acceptable result.
Malte von Anrep is a senior partner at Lancaster Brooks & Welch LLP, he is available as either a Mediator or an Arbitrator to help you achieve resolution on your dispute. You may contact Malte at 905-641-1551
Malte von Anrep graduated from the University of Western Ontario with a Bachelor of Law degree and was called to the bar in 1966.
Appointed as Queens Counsel in 1984
President of the Lincoln Law Society in 1985
Certified as a specialist in civil litigation since 1988
Malte was qualified as a mediator / arbitrator since 1997
Designation as a Dispute Resolution Officer since 2015