I had asked my assistant to arrange a date for what I thought was a simple but necessary motion in an action.  No problem, she said.  The next thing I knew, my associate was required to attend motion scheduling court to get a date.  The date for the motion was set many months away.

My client was less than happy with the delay and neither was I.  The client wondered out loud why he had to pay for me to attend court to get a date to attend court.  The action was effectively stalled until the motion was heard, and a fresh litigation plan would have to be renegotiated (again more money).  That left me wondering.  Why does it take a personal attendance to obtain a motion date?  Why can’t court scheduling be done by email or by a web based platform?  Why do I have to wait months to have a Master or Judge hear my motion?  How do I explain to my client why he or she has to pay for an outdated and lumbering court administration system, which has not really changed in decades?

I am not alone in this thinking: many of my colleagues express the same frustrations.  It is no wonder that clients are abandoning or losing faith in the system or in the extreme, are obliged to represent themselves.

Surely there is a better way.  And here it is.

I attach to this Key to ADR, a Speedy Justice Agreement (SJA).

The idea is quite simple.

For a single block or hourly fee, I will case manage and arbitrate all interlocutory motions and proceedings.  The SJA provides the parties with the option of dispensing with the usual time consuming and wasteful formalities involved in the bringing of motions.  For example, where appropriate, notices of motion and factums and even affidavits can be dispensed with.  The parties will notify the other and me of the nature of the relief sought by way of simple correspondence.  If evidence needs to be introduced and tested, the parties can exchange will say statements or affidavits and cross examinations will take place viva voce before me.  Awards that arise from the motions can be appealed or not and if the parties choose to do so, appeals can be brought to the court or to a panel of arbitrators.

SJA is flexible enough to give the parties the option to forgo costs of interlocutory motions, thereby reducing the risk to both parties.  Or, the parties can elect to follow the fee shifting costs regime of the Rules of Civil Procedure.

The parties are free to have the Arbitrator mediate the dispute at any time or more than once.

In effect, the SJA privatizes the court system for interlocutory matters, but lets the parties try the case before a trial judge or jury.

What are the advantages of SJA?  First, it is flexible in terms of procedure.  Motions can be heard in real time, and where appropriate, the parties can dispense with the costs of transcripts, affidavits, factums and the like.

Second, it is faster than the court system and certainly more convenient for counsel.  SJA “hearings” can be heard after five pm, on weekends, and the location is up to the lawyers.

Third, procedural and substantive rights are protected.  The SJA allows you to forego appeals, or allow appeals to the court in accordance with the Arbitration Act 1991, or to another arbitrator or arbitrators.

Fourth, where agreed, the SJA arbitrator can mediate the case.  The SJA neutral will have a good understanding of the case and can bring to bear a better risk analysis to the parties.

Are there disadvantages?  I can think of only two.  One is that privatizing interlocutory motions costs money and clients may be reluctant to pay this charge.  However, this cost is offset by the speed and efficiency of getting to justice sooner.  Take a typical commercial case.  Other than discoveries, think about how much money your clients typically spend on motions and how long does it take to get the motions heard?  I am betting that a client would be prepared to pay for a service that moves the matter on faster and which reduces the overall bill by cutting out some of the formalism of court procedure.

Another disadvantage arises if you happen to be a proponent of the theory that plaintiffs will likely suffer litigation fatigue along the way and will settle later for less money.  If you believe in this way of practice then the speed offered by SJA is not for you.  My response is that more than 97% of cases settle prior to trial anyway, so do your own cost benefit analysis of what SJA offers.

My experience as an insurance and civil litigator for over 32 years tells me that clients’ wants are simple: clients want to be heard; they want to be treated fairly; and most important, they want early justice.

So what will this cost?  There are a number of options.

Option A: Block Fee:  $10,000 plus HST divided by the number of parties.  Under this option, there is no limit to the number of motions that you can bring.  If you wish to have a Rule 24.1 mediation of the dispute, then there is an additional all inclusive fee of $2,500 for a half day mediation and $4,500 for a full day mediation, both plus HST.

Option B: you pay as you go.  The cost is $2,500 for a half day motion and $5,000 for a full day motion plus HST.

All prices include the drafting of the Award.

Although litigation is adversarial, adopting efficiency as the bright line to pre trial procedural disputes need not be.

If you have any questions about this article, please do not hesitate to contact Gary Caplan at Mason Caplan Roti LLP.

[1] 2014 ONCA 791.

[2] See for example, John Wade, “Duelling Experts In Mediation and Negotiation: How to Respond When Eager Expensive Entrenched Expert Egos Escalate Enmity”, (2004) 21:4 Conflict Resolution Quarterly, 419.

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