We're not going back to business as usual

The coronavirus has demonstrated the shocking fragility of the justice system in a way I expect none of us would have foreseen at the close of 2019. Who would’ve thought that we’d wake up one day to find that months of hearings, conferences and trials, some of which had been scheduled years ago, had been administratively adjourned sine die? Or that there would be applications of critical personal and financial importance to our clients that the courts would refuse to hear because their subject matter was not among those listed in a sweeping procedural order issued sua sponte?

As Alberta’s courts have carefully, and only partially reopened with constant announcements of ongoing or additional restrictions in accordance with the latest public health directives, I fear that the butcher’s final toll has yet to be delivered. The swathe of adjourned hearings, conferences and trials has not been kicked forward into an empty judicial calendar. It’s landed on top of all of the previously-scheduled ones, some of which had also been booked years ago. Of course, to round out this, the trial coordinator’s worst nightmare, we also have all of the new interim applications that failed to rise to the court’s definition of urgency, waiting, with increasing impatience, to be heard.

However long it takes our courts to fully reopen, it seems to me that we are unlikely to see a return to “normal” court operations any time soon. Without a sudden and considerable escalation in the litigating public’s interest in conciliation and peacebuilding, I suspect the effects of the pandemic will linger well past the end of 2021 and the potential vaccination of most Albertans.

What’s been most interesting to me about the impact of the coronavirus on our justice system, is that the processes which have proven to be the most vulnerable are those of the traditional justice system: the processes built around litigation and the courts. Others, referred to before the pandemic,as “alternative” dispute resolution processes, have actually demonstrated a fair degree of resilience and emerged not only unscathed but perhaps improved.

Immune to the slings and arrows of petty bureaucracy and unencumbered by civil servants, Alberta’s mediators and arbitrators, like those in the rest of the country, have stepped forward and embraced change. It has been comparatively easy for us to make the transition to modes of dispute resolution which respect social distancing requirements – it isn’t much of a leap to go from dealing with people who can’t stand to be in the same room as each other to dealing with people who are in fact not in the same room as each other – especially when videoconferencing has already entered mainstream culture, thanks to common communication programs like FaceTime and WhatsApp. (Some of us, to be frank, had incorporated videoconferencing into our day-to-day toolbox years before the coronavirus, as a way of expediting meetings by eliminating travel time, hearing the evidence of out-of-town lay witnesses and experts, and extending dispute resolution services into remote and rural areas of the province underserved by both bench and bar.)

It’s true, however, that mediation and arbitration are somewhat more effective when conducted in-person rather than at a distance. The physical presence of the mediator or arbitrator lends a certain gravitas to the proceedings. What’s more, both counsel and clients are slightly less likely to be rude, gratuitously flippant or senselessly obstinate when confined to the same room as their antagonists. It has nonetheless been my experience that the resulting inefficiencies are modest at their very worst, may be substantially mitigated by adequate preparation beforehand, and perhaps be eliminated entirely by a sternly-worded commentary delivered, in the guise of housekeeping notes, at the outset of each meeting or hearing.

It’s also true that the technology required to participate in the remote resolution of disputes creates an impediment to accessing justice. Although this argument had a great deal more force 20 years ago, it retains a certain residual degree of relevance despite the plunging costs of laptop computers and internet services, and the mind-boggling ubiquity of smartphones. To effectively participate in a videoconference, one must have not only a device equipped with a camera, a microphone and a reliable internet connection, but the confidence to learn and use new software. Whether or not you can afford to buy it, some people are simply not comfortable with technology. That said, the companies which own videoconferencing platforms, like Zoom, which runs on multiple operating systems and has modest bandwidth requirements, have worked hard to create user interfaces that are simple, streamlined and intuitive. Barriers remain, to be sure, and I do not know whether they can be wholly overcome.

Curiously, meeting by videoconference offers a number of advantages over in-person meetings, even to technophobes, such as the ability to instantly share electronic files, make an audio or video recording of the proceedings, and, more importantly, share computer screens to walk participants through complex spreadsheets, financial statements and other documents. They also offer many of the comforts in-person meetings usually provide, including private break-out rooms for caucusing and virtual whiteboards for taking notes, performing calculations and exploring settlement options, while relieving mediators and arbitrators of the cost of coffee and comestibles.

Whether because of these factors or despite them, anecdotal information from my friends and colleagues suggests that mediation and arbitration are being increasingly used to resolve legal disputes in Alberta.  This growth is almost entirely in the use of remote resolution processes. The near-termination of access to the courts has doubtless been the key cause of this change; the question that occurs to me is how long this change will last. If the judicial congestion we experience when the courts fully reopen does indeed last long term, the pandemic could be the tipping point leading to a permanent change in the public’s perception of dispute resolution processes.

The closing of the courts has shaken public confidence in the traditional justice system and, by forcing lawyers and litigants into other dispute resolution processes, will have the collateral effects of demystifying those processes, enhancing public and professional perceptions of their efficacy and efficiency, and encouraging more people to see litigation as the “alternative” to mediation and arbitration.

I have long advocated for change, especially in the context of family justice. But I never would have wished it to come about in this way. The death of thousands, and the illness of hundreds of thousands more, should not be the motive force responsible for steering Canadians away from the dispute resolution process that, especially in family law matters, is the least efficient, most expensive and most conflictual.

I don’t know – no one does – how long it will take for our courts to fully reopen. But I’m fairly sure that the crisis provoked by the pandemic will leave an indelible mark on our justice system. Whatever “business as usual” will come to mean in the future, it certainly won’t have the same meaning as it did at the close of 2019.