Prevention & Resolution (DPR)

Transcription

1 Participatory Justice: Reflections on the Dispute Prevention & Resolution (DPR) Marie-Claire Belleau Professeure titulaire i à la Faculté de droit de l Université ité Laval February

2 AGENDA Context Conflict Legislative Reforms A Vast «Offer of Justice» & the «MIDPR» 2

3 CONTEXT 3

4 The transformation ti of the jurist The gladiator The pacifist 4

5 Et Estrangementt and intolerance The judicial system is characterized by: Public estrangement & Changes in the culture of citizens Tolerance and respect in the legal milieu have changed The image of the «lawyer» as gentlemen of rights is characterized by qualifiers such as «dishonest», 5 «interested», «money driven»

6 The profession and expectations ti «One size» judicial system fits «all»? : The weathly The poor The fighters «One size» justice does not meet the needs of the citizens Increasing phenomenon of citizens not represented by counsel in the court system Citizens have lost trust in the judicial system 6

7 The barometer of the professions Percentage of Canadians who trust Profession Firefighters Nurses Doctors Farmers Teachers Police officers Notaries Judges Bankers Priests Lawyers

8 Results of a survey for the Québec Ministry of Justice (summer 2006) Profile % of trust Never went to court 63 Went to court 56 Went to court as witness 58 Went to court as party 55 Won their case 64 Loss their case 47 Global % 59 8

9 Access to justice: most frequent complaints 81% : citizens feel uncomfortable (83 in 1993) 79 % : high cost of justice (62 in 1993) 76 % : unreasonable delays (80 in 1993) 70 %: tribunals are mazes (n d. in 1993) 70 %: difficulty in not being represented by counsel (n d. in 1993) 60 % : loss of control of the problem 9 (62 in 1993)

10 The Vanishing Trial Galanter 2004 or décrochage judiciaire American studies Trial numbers continue to drop year after year Only 1,8% of the cases go to trial in the USA and in Canada In Québec: 7 %? Fewer trials, yet as many «judge s-days days» Pre-trial motions are increasing When trials are held, they are: Longer More expensive 10

11 Files Opened, Superior Court Québec Division (total) Numb ber of open cases (c civil & fam mily) Civil 4000 Family Years

12 Number of open cases in Québec Civil Law Tribunals (1) (2) (3) (3) (4/1) Cour of Appeal ,7 Superior Court (civil) Superior Court (family) , ,9 Provincial i Court ,55 (civil) Provincial Court ,6 (Small Claims) Total Trial Level ,4 Grand total ,2 12

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14 Costs to settle litigation Examples: Radio-Canada d c. Guitouni i [2002] RRA (C.A.) Plaintiff received $ in damages for injury to reputation Costs of litigation: $ (honoraries, expertises, judicial stamps, stenography, etc.) 6 years of procedures - 55 trial days Deficit: $ Trudeau c. Pépin, Létourneau J.E (C.S.) Plaintiff received $ for firing without just and sufficiant i cause and injury to reputation ti Costs of litigation: $ Déficit: $ 14 Source: Rapport du Comité ad hoc sur les frais. Barreau de Montréal. 2004

15 Access to Education: Autonomy, Responsibility Critical mind: calling into question the judicial system Challenges to Authority: Révolution tranquille, May 1968 Me, Myself and I: The Importance of Emotions The culture of the instantaneous: Internet, Cellular, Source: Me Dominique Bourcheix 15

16 Change is needed for the Legal Profession to: Recognize that expertise based primarily on rights is generally brings insufficient added value to clients Put negotiation and agreement at the heart of the professional relationship between jurists and clients 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 problems Improve the experience of citizens in relation to legal services 16

17 Law s foundations & the legal vocation Law as the guarantor of social order Law as pacifier and not as war tool Transform the image of the «gladiator» into the pacifist Participatory justice is inscribed in the spirit of the legal vocation: empowerment Act as partners to clients Assist our clients in their choices, in their decisions for themselves, in assuming his or her part of the responsibility in relation to his or her own decisions Search truly for justice and equity for all 17

18 Building on traditional skills Traditional skills of advocats remain fundamental Jurists must bring added value to the negociation Draw on existing iti abilities and competences to produce creative, innovative, custom made solutions Objectives : To better respond to citizen calls for justice To make available a vast «offer of justice» 18

19 Fin de siècle transformations Emergence of Mediation Programs Family mediation: mandatory information session Small claims mediation Compulsary Pretrial Mediation in Ontario Many Canadian programs force mediation early in the judicial process Increased role of judicial conciliation Civil Procedure Reform of 2003: Conférence de règlement à l amiable (CRA) TAQ (Administrative tribunals), Cour du Québec (Provincial court), Cour supérieure (Superior Court) and Qubec s Court of Appeal offer judicial conciliation (CRA) The increased importance of case management: proactive role of judges Members of the judiciary are major actors in the 19 introduction and use of modes of dispute prevention and resolution (DPR)

20 New Forms of Intervention ti Community mediation (neighbourhood) Organisational mediation (psychological harassment in the work place) Restorative justice in Criminal Law inspired by: First Nations Healing Circles Private Arbitration 20

21 CONFLICT 21

22 Definition iti of conflict Conflict results in behavior, in an individual or group, which, for another person or group, is unacceptable and requires a response There is conflict as soon as a person: causes a damage to another person ; expresses a grievance in relation to another person. adopts a behavior considered deviant for another person; submits another person to a form of social control. Source: Commission du droit du Canada «De la justice réparatrice à la justice transformatrice» 22

23 Definition iti of conflict (2) Conflict can have individual or collective dimensions 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 that are specific to each individual Conflict can also result in positive and/or negative outcomes Source: Commission du droit du Canada «De la justice réparatrice à la justice transformatrice» 23

24 Observations on Conflict: It is natural and inherent to all relations Its resolution is important for the maintenance of healthy and harmonious relations with: associates, partners, work colleagues, business relations, family, neighbours Relational ruptures need to be successful resolved to continue respectful acquaintance Objective = imagining means of: Preventing conflicts Resolving conflicts Instil a culture of participatory justice within the p p y j legal community and in society as a whole 24

25 Dispute Prevention and Resolution (DPR) INTERVENTION Modes of DPR Conflict in the relation Interpersonal relations Litigation (law)/ Specialized conflict Legal rapports 25

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28 The control of the case by the parties This control of the case is limited by the power, and even the duty, of the tribunal (4.1 C.p.c.): to see to the orderly progress of the proceedings and to intervene to ensure proper management of the cases This power includes the rule of proportionality p (4.2 C.p.c.) The judges must play a role in applying the principle of conciliation (CRA) 28

29 The control of the cases by the parties, while respecting the rules and the delays of the Code of Civil Procedure & the powers and duties of judges in ensuring the proper management of cases The obligation of procedural good faith Orality Proportionality Judicial Conciliation : Conférence de règlement à l amiable (CRA) 29

30 Control of examination on discovery Orders to safeguard the rights of parties Abridgment of delays in motions to institute t proceedings in emergency situations Splitting of action Case management: ordinary and particular 30

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34 This Code establishes the principles of civil justice and governs, in harmony with the Charter of human rights and freedoms (R.S.Q., chapter C-12), the Civil Code and the general principles of law, the procedure applicable to private modes of dispute prevention and resolution when it is not otherwise determined by the parties, the procedure applicable before the courts as well as the procedure for the execution of judgments and for judicial i sales.

35 This Code is designed to enable, in the public interest, the resolution of interpersonal, collective or societal disputes through appropriate, efficient and fairminded processes of civil justice that encourage the parties to participate in preventing and resolving disputes

36 BOOK I GENERAL FRAMEWORK OF CIVIL PROCEDURE TITLE I PRINCIPLES OF CIVIL PROCEDURE APPLICABLE TO PRIVATE MODES OF DISPUTE PREVENTION AND RESOLUTION

37 Pi Private civil il justice is founded d on private modes of dispute prevention and resolution that are chosen by mutual agreement by the parties concerned in order to prevent an eventual dispute or resolve an existing one. The principal such modes are negotiation between the parties, and mediation and arbitration, which bring a third person into play to assist the parties. The parties can resort to any other process that suits them and that they consider appropriate, whether or not it borrows from the negotiation, mediation or arbitration models. Parties must consider the private modes of prevention and resolution before referring their dispute to the courts.

38 Parties can prevent or resolve a dispute on the basis of norms or criteria other than legal norms or criteria, subject to respect for human rights and freedoms and compliance with other public policy rules.

39 If the parties are unable to resolve the dispute through a private process, they can refer it to the courts, subject to the provisions governing arbitration.

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41 AVast «Offer of Justice» Prevention of disputes Resolution of disputes Negociation Trial Foundations: The communication of the needs and interests of each The relations and not the conflict at the heart of the preoccupations 41

42 A Vast Prejudiciary «Offre of Justice» Prevention of disputes Resolution of disputes Neutral Partnering Facilitation Mediation Evaluation Collaborative Law Arbitration Negotiation Evaluation by a Third Party 42

43 A Vast Judicial «Offer of Justice» Out of Court Negotiation between Lawyers Judicial Conciliation Conférence de règlement à l'amiable (CRA) Case Management Trial Negotiation Evaluation by a Third Party 43

44 Needs North Rights Empower rment West Auttho ority Type of intervention Psychosocial DPR Based on Autority Legal Finality Growth Go Integration Settlement e e Decision Support of the VIBES Help Relation Therapy Expert s Counsel Communication and facilitation Facilitation Couple s Therapy Mediation 11 Mediation Approaches Coaching of manager Based on settlement Evaluative Facilitation Judiciary Penal Conciliation Conciliation Judicial conciliation Representation by lawyers Expertise Decision by a Third Party Collaborative Law South Employer/Union Psychosocial Neutral Evaluation Arbitration Negotiation by lawyers Mini-trial Règlement exécutoire Judicial Decision East

45 Participatory justice aims at offering avenues so that citizens can determine themselves their path to justice by participating in the process and in finding solutions instead of having athirdparty impose one on them. Types of participation: The parties participate in designing the solution The parties participate in determining process to which they will voluntarily submit 45

46 Voluntary Good Faith Transparency Confidentiality Empowerment Recognize each person s capacity to take charge of the situation Believe in the potential of individuals to take the best decisions for themselves Participation in finding solutions In determining the process to which to submit Consequence: A Change of Expectations 46

47 Collaboration Exchanges Partnership ( expertise) Relations of Equivalence ( hierarchy) Consequences: Change of paradigm Change of role for both jurists and citizens 47

48 Objectives: A transformation towards cooperation before trial 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: For example: Conciliation Cooperation Good Faith Proportionality Orality Promote the continuum of a vast «offer of justice» 48

49 What is next for participatory i t justice? Facilitate the debates around the necessary changes of the legal profession from all perspectives Bring changes to legal training at the university and in professional schools Build on innovations in appropriate practices to respond to the needs of justice of citizens Confront the questions posed by citizens that represent themselves in the judicial systems Regain a professional pride and go back a sense of legal vocation 49

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