Ottawa Citizen

Saturday 4 September 1999

Mediation gets less than due

Dave Brown
The Ottawa Citizen

Over the past 10 or 12 years, I've attended too many wine and cheese distractions in the boardrooms of too many law firms, as lawyers gathered to show their support for mediation.

Stay out of the courts, is the cry. Mediation works better than litigation. All government departments insist litigation be avoided unless mediation fails. It's the way of the future, say those who toil in the field of writs.

That doesn't bode well for the future of lawyers, law schools and law societies. Are they serious when they voice support for the principles of mediation?

In its last fiscal year, the legal aid budget in Ontario was $210.7 million. Until April 1, that fund was administered by the Law Society of Upper Canada, a tough union with some 18,000 members.

The money pot is now called Legal Aid Ontario (LAO), under the Ministry of the Attorney General. Lawyers have had access to money to pay mediators, particularly in marital breakdown cases. Legal aid pays for up to five hours of mediation.

In the past year, throughout Ontario, less than $20,000 from legal aid has gone to mediators. The figures come from George Biggar, vice president of legal services for the new LAO.

He points to a growing trend to "settlement conferences" in family matters, and in the past year about $300,000 has gone into that program. It doesn't include mediators, but "specially trained members of the bar."

Call me a skeptic, but when looking at the lawyer herd, the term "lip-service" pops to mind. It's in the Oxford Dictionary: "Insincere expressions of support."

I can't recall a lawyer over the years, among those hundreds grazing on cheese and crackers, debunking mediation. Yet the legal aid numbers suggest they stuck to litigation.

To this point we're looking only at family law cases. For the past decade, a mediation office dealing in criminal cases has been operating in the Elgin Street courthouse, and has proved its worth beyond a doubt.

It's called the Dispute Resolution Centre for Ottawa-Carleton, or as its recorded greeting calls it: "The Dispute Resolution Centre of the Office of the Crown Attorney."

Judges and Crown attorney Andrejs Berzins have praised its effectiveness. They have urged the provincial government to support it. The Crown's office has no funding for it.

Defence lawyers love it. An offender can avoid a jail term by negotiating a deal with a victim to pay damages. Victims are happy. But when the bill goes in, it's the lawyer that gets paid.

The amount of legal aid money that finds its way to the criminal mediation office is nil. It has survived mainly due to founder Carole Eldridge and a determined group of volunteer supporters who knows it is the way of the future.

It has survived on minimal government hand-outs, and its members have had to resort to running bingo games to raise money to keep it operating. Its mediators are trained volunteers, many with administrative backgrounds in the real world where they learned the pitfalls of litigation and the benefits of mediation.

Individually, lawyers are fine people doing the best they can. But their profession has become like an ocean liner running at speed. It can't stop and can't change course, not only because of inertia, but because there's nobody at the wheel. Clients are being taken for a ride.

Bottom Line

As the millennium approaches and the door opens to the 21st century, the legal industry, at least in Ottawa, seems to be stuck in the doorway -- to the 19th century.

Lawyers are moaning and groaning about a recent notice (order) from Justice James Chadwick: "As of Sept. 15 members of the profession will be required to be gowned for all appearances in the Superior Court."

There are some minor exceptions, but for the most part, gowning up is coming back. In the 1980s in the old County courthouse, the gowning rules were eased because of a shortage of changing rooms and an increase in the number of women in the profession.

One dissenting lawyer sends along a biblical line from Matthew 23:27-28. "Ye outwardly appear righteous to men, but within ye are full of hypocrisy and iniquity." Just what the 21st century needs; lawyers from the 19th.

Dave Brown is the Citizen's senior editor. Read previous Dave Brown columns at www.ottawacitizen.com