Improving Access to Justice

Making the most out of the ADR toolkit

Improving Access to Justice

There are many obstacles to accessing justice. Cost and delays are often cited as major obstacles. Over the last decade, governments and litigants have increasingly looked at the Alternative Dispute Resolution (“ADR”) toolkit for simpler and quicker resolution. However, the strength of the court system is that it has evolved to ensure fairness of proceedings. In order to be a viable alternative, ADR must be as rigorous in ensuring fairness.

For ADR professionals, ensuring informed consent and appropriate disclosure continues to be challenging. However, these elements are essential to fairness.

Many litigants select an ADR process to save money, and for that reason choose not to hire lawyers to assist them in the process. This attitude contains an inherent risk of unfairness. Meaningful participation in an ADR processes is voluntary and based upon consent. The challenge, without the involvement of lawyers, is ensuring that the consent is informed.

Informed consent is based upon the parties’ understanding of their rights and obligations under the law. While an ADR professional can talk in general terms about rights and obligations, they cannot give specific advice to the parties. A lack of legally informed consent can undermine the process and leave agreements vulnerable to challenge.

Disclosure is frequently challenging. In any bargaining process, the parties have to know both what they are getting from an agreement as well as what they are giving up. The rights and obligations of disclosure, underpin the equality of the bargain.

The best practice is for each party to have legal representation throughout the ADR process. The lawyers will have the professional obligation to ensure informed consent and appropriate disclosure. Best practice falls apart when parties do not want or cannot afford to pay for full legal representation.

The challenge is finding a balance between affordability and fairness. Adding limited scope retainers to the ADR toolkit can help achieve this balance.

Limited scope retainers (“LSR”), or unbundled legal services, have been specifically regulated by the Law Society of BC since 2013 and are recognized as a means of enhancing access to justice. Simply put, rather than providing full representation, the lawyer provides specific services often for a fixed fee.

For many parties, the biggest challenge to lawyer involvement is the perception of cost. The traditional billable hour model does not lend itself to predictability of costs. However, LSR provides more predictability and it is easier for clients to budget. Many clients will happily pay $600-800 for 1-2 hours of a lawyer’s time to properly understand their rights and obligations, while shying away from paying a $3-5,000 retainer. This is especially true when clients recognize that, by getting this advice early in the process, it will make a fair resolution more likely.

LSRs can add an extra layer of fairness. Lawyers are in an excellent position to ensure informed consent and the appropriateness of the proposed ADR process. This is especially true in family matters where, in BC and Ontario, the lawyers are required to screen for family violence and power imbalance.

LSRs can also address the need to ensure appropriate disclosure by advising the clients of what they will require and what they must disclose. In family matters, this often includes the preparation of a Financial Statement. The flat fees for preparing a standard Financial Statements range from $400-800.

By encouraging the parties to obtain legal advice and explain the option of LRS, the ADR professional can enhance their role to ensure fairness. They can better prepare the parties for a meaningful process and increase the certainty of any final agreement.

Finding a LSR practitioner can be more of a challenge. In BC, there is a Family Unbundled Legal Services Roster. Their website is unbundling.ca. This roster has almost 100 members throughout the province. The CBABC Unbundled Legal Services Section has more than 100 members ranging across most areas of law and is a great resource for practitioners.

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