Are Lawyers Part of the Solution?

Or... part of the problem?


♫ For whom the bell tolls
Time marches on
For who the bell tolls...

- Musicand Lyrics by: M.E. Gibb, R.H Gibb and B. Alan, recorded by Metallica.

Ashleigh Brilliant once said: “Sometimes change happens so slowly, you
don’t notice it; sometimes change happens so quickly, it doesn’t notice you.”

I think the vast majority of us are of the opinion that this will always be true that we, as lawyers, are central to the dispute resolution process; even more so than judges. Lawyers appear before all types of forums, boards, tribunals and commissions and while they may or may not have judges at the helm, they have lawyers representing the parties. Duly comfortable and secure in our role, we don’t really pay much attention to proposed changes and the rumbles of discontent being heard here and there. 

However, signs are that there is a growing movement to unseat lawyers from their central role and open up the ability for non-lawyers to represent people in different settings. This is as a result of the growing call to change the nature of the dispute resolution process to achieve greater effectiveness at lower cost. One can speculate on the rationale, but I believe that governments have simply tired of lawyers lackluster attempts to address the access to justice issue with little to show for it, such as trotting out the same old faded responses like calls to pump up pro bono or for the government to spend more money.

One such sign is the development of an online court in the UK. Justice Secretary Liz Truss stated: “What we don’t want is to do legal aid according to the system we had before. We’re designing a new system, and we want to create a new legal support mechanism around that system.”

Furthermore: “Ms. Truss told a meeting of the House of Lords constitution committee that online courts would mean ‘fewer lawyers’ were needed to help people navigate their way through a ‘cumbersome and complex’ system.”

While the UK is still building their online court, ours is live and operating. The Civil Resolution Tribunal (“CRT”) here in BC is helping people resolve their strata disputes and will shortly start dealing with low-value Small Claims disputes. 3500 people have used the “Solution Explorer” to help resolve disputes themselves and 185 parties have filed online applications for strata dispute resolution with the CRT.

Before the CRT, lawyers are not welcome. The general rule is that parties are to represent themselves (s. 20 Civil Resolution Tribunal Act). S. 20 provides that a party may be represented by a lawyer if they are a child or person with impaired capacity, the rules permit the party to be represented, or the tribunal, in the interests of justice and fairness, permit the party to be represented. Gone is the automatic right of audience.

We have a choice as lawyers. We can continue to pay lip service to meaningful change in the courts and find ourselves increasingly sidelined. Or, we can get out in front of the issue and show real leadership in helping clients, courts and the government find cost-effective solutions to common legal problems in areas such as family law, consumer problems, unfair dismissal, neighbour disputes and low-value commercial disputes. 

Time marches on – we are now for whom the bell tolls…. 

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