For years the debate has raged – what is the unauthorized practice of law? Clearly, there exists a need to ‘protect the public’ from those who purport to advise on legal matters, but do not have the requisite training, knowledge, or expertise to do so. The question then becomes what is the appropriate training, and who is entitled to give such advice?

The legal profession is not unique in the quest to define its own perimeters and maintain a stronghold on its own domain, and there is some merit for this position. There have been many cases over the years where individual clients were given poor representation by people claiming to have legal knowledge. This is true of both those within our legal profession, as well as those who are outside it.

The difference, of course, is that lawyers within the profession who act negligently are subject to rules, regulation, and disciplinary action. Those who seek the guidance of people outside the profession, who are unregulated, do not have any of these safeguards. For these reasons, among others, the OBA has, for several years, advocated for the regulation of paralegals.

This background brings us to the Access to Justice Act, and more specifically, Schedule C of Ontario’s Bill 14. The bill was drafted upon recommendations to the attorney general and, in particular, the recommendations of the Law Society Task Force on Paralegal Regulation. The focus of my comments pertains to the general principles outlined by Schedule C of the legislation – namely, the regulation of paralegals in the province of Ontario.

The bill appoints the Law Society as the appropriate regulator of paralegal services in Ontario, and gives the Law Society the powers to establish the guidelines for the licensing, practice standards, complaint and investigation process, discipline, and liability insurance for those who provide legal services in Ontario. Oddly enough, the words "paralegal services" are not present in the legislation.

Instead, the bill deals with legal services, which is then broadly defined as follows: “a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.”

Further, the bill states that:

“without limiting the generality of subsection (5), a person provides legal services if the person does any of the following:

1. gives a person advice with respect to the legal interests, rights, or responsibilities of the person or of another person;
2. selects, drafts, completes, or revises,
   • a document that affects a person’s interests in or rights to or in real or personal property
   • a testamentary document, trust document power of attorney or other document that relates to the estate of a person or the guardianship of a person
   • a document that relates to the structure of a sole proprietorship, corporation, partnership or other entity, such as documentation that relates to the formation, organization reorganization, registration, dissolution or winding up of an entity
   • a document that relates to a matter under the Bankruptcy and Insolvency Act (Canada)
   • a document that relates to the custody of or access to children
   • a document that affects the legal interests, rights or responsibilities of a person, other than the legal interests, rights, responsibilities referred to in subparagraph i to v, or
   • a document for use in a proceeding before an adjudicative body.
3. represents a person in a proceeding before an adjudicative body;
4. negotiates the legal interests, rights or responsibilities of a person.”

This definition is so encompassing that it could include tax planners giving advice on corporate structures, social workers who are devising parenting plans, financial advisors who are devising estate plans, and among others, mediators and other providers of ADR services.

Clearly, the intention of the Law Society is not to regulate all of these entities, and so the bill provides that “a person who is not a licensee may practice law or provide legal services in Ontario if and to the extent permitted by the by-laws.” Thus, the bill as drafted leaves the matter within the purview of the Law Society to exclude these other groups. This is not satisfactory. Would it not be better to define paralegal services, or give a definition that can be more narrowly defined?

The OBA ADR Executive has been very concerned about the ramifications of this bill to mediators and the practice of mediation. For this reason, a subcommittee was struck to make a submission, which, among other things, recommended that the legislation specify the exemptions, rather than relegate them to the by-laws of the Law Society. Specifically, the OBA ADR Section recommended the exclusion of the services provided by mediators from the scope of the bill.

By its nature, mediation is not advocacy. Mediators are utilized in a variety of contexts which provide the public with a service that is cost effective and expedient. Local mediations occur in the community context, informally resolving disputes among neighbours. Peer mediations are prevalent in the school systems. Mediations are successful in the family law area, where mediators effectively foster communication and agreement. Mediation is formalized in the insurance industry and has proven successful in the resolution of personal injury cases, in which lawyers and their clients are in attendance at mediations. Mediation is utilized in large scale environmental projects, in victim offender contexts and in employment situations.

The OBA ADR submission has been adopted by several other OBA Sections and has received the support of the CBA ADR National Executive. We are pleased with the lead taken by our section Executive and we are encouraged by the inroads that we have made. At the time of writing this article, Bill 14 had obtained first reading, and will likely proceed to a second reading. However, the matter will be on the OBA Council agenda at the next Council meeting.

A copy of the letter of support from the CBA National ADR Chair, Rick Weiler, can be found on our website.

In the summer, when the Vancouver ADR Section Executive met to plan our Section’s activities for the coming year, the debate surrounding faith-based arbitration was sparking media attention in Ontario and across Canada. It has already been “settled” in Quebec, and there were some peripheral signs that it could become an issue in B.C. as well. Even in Europe, the Ontario debate made headlines, as Europeans were concerned about the reverberations of a Canadian precedent on European societies.

The executive decided to organize a panel discussion to explore the issue, and was actively supported in its effort by the Victoria ADR Section. By sheer coincidence, two days prior to the scheduled panel on faith-based arbitration (Jan. 25, 2006), the Globe and Mail featured a comment by Murray Campbell, headlined “McGuinty still in the line of fire over religious tribunals.”

Contrary to common knowledge, the role of faith-based arbitration in Ontario had not been settled by the time the forum was held (it was passed a month later, in February 2006). To be sure, the debate about faith-based dispute resolution is far from decided - not in Ontario alone, but in Canada at large. It strikes right into the heart of the separation of church and state. In Canada, it is compounded by the Charter provisions on equality in s. 15, and democracy – or “secularism” – in s. 1.

The panel featured four speakers from four faith communities addressing the issue of faith-based dispute resolution: Mariam Pal discussed Islamic arbitration, Catherine Morris focused on Christian procedures, Judge Sheni Dossa talked about the Ismaeli community’s position to religious adjudication, and Ryan Berger addressed Jewish religious tribunals.

Abstracts, presentations, and bios of the speakers follow.

Catherine Morris - Bio
Abstract
Presentation

Mariam Pal - bio
Abstract
Presentation

Sheni Dosa - bio
Abstract
Presentation

Ryan Berger - bio

Further to the updating of the CBA Code of Professional Conduct (Resolution 04-01-A, dated 14-15 August 2004) promoting out-of-court settlements, two members of the ADR Section, Quebec Division, gave a conference on collaborative law and on various business dispute settlement solutions. Bear in mind that the resolution states that, whenever a case can be settled reasonably, the lawyer should advise and encourage the client to do so rather than to initiate or continue legal proceedings.

First of all, it should be pointed out that in the U.S. and elsewhere in Canada, lawyers use collaborative law principles in several matters other than family law, including damage insurance, medical liability, estates and in labour law.

The implementation of collaborative law in business law encompasses the following elements:

Morello and Shea explained the two premises of collaborative law: the same facts before the same court do not necessarily produce the same results, and a large majority of the cases are settled out of court.

The guest speakers also pointed out that, unlike mediation, collaborative law gives lawyers a central role through their obligatory participation in the process.

They further presented the five stages of the collaborative lawyering process in business law, which can be summarized as follows: 1) identification of the client's rights and interests; 2) control of the facts and legal assessment of the situation; 3) development of acceptable settlement options in law and in the facts; 4) assessment of the options developed; and 5) negotiation with the lawyers and parties present.

Shea explained that a vital rule in the process is the frank and mutual disclosure of information that is relevant and essential to the case.

In her view, the participation agreement is the cornerstone of collaborative law and encompasses several components. This participation agreement binds the parties through a commitment not to refer, or threaten to refer, the case to court during the process. The speakers underscored another key element of the participation agreement: collaborative lawyers who do not succeed in settling a dispute cannot subsequently represent their respective clients in court.

The speakers also mentioned that collaborative law recognizes the importance of long-term, lawyer-client business relationships. For example, some national law firms represent the same client in several courts and have had a business relationship with that client for several years. In order to resolve disputes and at the same time preserve a business relationship, collaborative law encourages national firms to appoint a collaborative lawyer working for another firm so that the client can benefit from the collaborative law process.

By contrast, collaborative lawyers can appoint a litigation lawyer who has already established a lasting business relationship with one of the parties. In this case, the litigation lawyer acts as consultant outside of the collaborative law process.

However, it is important to note that the use of collaborative law principles is generally not recommended as a means of business dispute settlement if one of the parties has no legal representation, or in cases of fraud or dishonesty.

Finally, John-Nicolas Morello pointed out that one of the benefits of collaborative law is the creation of harmony in business relationships, which generally ends up generating real assets for the business, whereas disputes generate liabilities.

ADR Substantive Program scheduled for Aug. 14, 2006 in St. John’s, Nfld.

The topic of the program, supervised by local Chair, John Clarke, will focus on practice tips in commercial mediation, such as redressing power imbalances.

Focus on commercial mediation at St. John’s business meeting

Plan to attend the ADR Section’s meeting at the Canadian Legal Conference in St. John’s, Nfld., this August. The meeting will include a substantive discussion led by John Clarke and Rick Weiler on a variety of issues relating to commercial mediation. The ADR Section session is scheduled for Monday, Aug. 14, 2006, midway through the CLC.

Further information

Our Section will participate as a co-operating organization with ABA Section of DR for their “Advance Mediation and Advocacy Skills Training” program to be held in Toronto on Oct. 19-20, 2006.

The program has traditionally had the dual focus of mediation skills and advocacy skills in commercial/insurance mediation. The basic format is short (one-hour) plenary sessions at the start of the morning and afternoon during each of the two days, followed by up to five concurrent small group sessions for the balance of the morning and afternoon.

The organizing group is anxious to identify both plenary speakers as well as small group facilitators. Speakers are usually drawn from three groups: commercial mediators, in-house (usually defence) counsel and outside (usually plaintiff) counsel.

For all suggestions or any expression of interest, contact our Chair, Rick Weiler, at: rick@rickweiler.com.

The Canadian Forum on Civil Justice presents Into the Future. Twelve expert sessions presented over three days bring together the legal profession, the public, and the most influential and respected leaders of Canadian civil justice reform.

Further information

CBA Council has unanimously approved a resolution sponsored by the ADR Section endorsing the Uniform Commercial Mediation Act and calling on the federal, provincial and territorial governments to move quickly to adopt the legislation. The resolution was passed at the CBA’s Mid-Winter Meeting in Cancun, Mexico, Feb. 18, 2006, and is an important next step on the road to enactment of the UCMA.

Section Chair Rick Weiler and Past Chair Leila Gosselin were both on-hand to move and second the resolution. The ADR Section has played an ongoing role in advocating the adoption of this Canadian version of the Model Law on Commercial Conciliation, which the United Nations Commission on International Trade Law adopted in 2002. Former Section chair Hélène de Kovachich played an important role on the inter-governmental working group that led to adoption of the UCMA by the Uniform Law Conference of Canada in August 2005. The ADR Section, backed by this endorsement, will now continue with its efforts to encourage speedy passage of the law.

Section’s submission on the UCMA

Uniform Commercial Mediation Act

Increasing participation of the ADR Section’s nearly 1,600 members is a key goal of the Section Executive. In furtherance of this goal and to reflect the increasing diversity and specialization in Alternative Dispute Resolution across Canada the ADR Section proposes to restructure and re-invigorate its committees. An important part of this process is seeking input from you, the ADR Section membership, on which committees you would be prepared to play a role in – including a leadership role.

At present, the ADR Section has the following committees:

• American Bar Association liaison
• Communications (including newsletter, website, listserv)
• Continuing Legal Education Committee (planning and organizing CLE events)
• Legislation and Law Reform
• Case Comments (commenting on ADR cases of interest)
• Promoting ADR
• International ADR

What changes should be made to this structure? What areas should be added? For example, should there be committees dealing with specific ADR processes such as mediation, arbitration, collaborative law, etc? Should committees be structured along substantive areas of law such as family, commercial, insurance, construction, employment/workplace? We’re “blue-skying” here, and really need input from the membership.

“If they had a committee on ______, that’s something I’d really be interested in being involved in, or even chairing.” Let us know how you would fill in the blank.

Please provide us with your input by April 30, 2006, and direct your response to National ADR Section Secretary-Treasurer Serge Pisapia at serge.pisapia@sympatico.ca.

Anne M. Wallace, Q.C., is the recipient of this year’s Douglas Miller Award from the Canadian Bar Association. The award recognizes a CBA member who demonstrates outstanding dedication and team spirit. In addition to other important roles with the CBA, Anne presently serves as the Saskatchewan representative on the ADR Executive – a group that can well attest that this award is richly deserved. Congratulations, Anne!

Anne Wallace wins Douglas Miller Award

The first portion of our meeting was held jointly with the full executive of the ADR Institute of Canada. Lively discussions ensued about the various forms of co-operation between our two organizations, such as using the CBA’s online CLE facility to put together a joint program, or even dovetailing with ADRIO's fall conference in 2006. Then, our own executive's meeting resumed and, as is always the case, year after year, the highlight was the reports made by the individual Branch Chairs from coast to coast (the reports are available on the Section’s website).

We know an e-mail is a quick, virtual way to communicate, share information and exchange ideas with one person or several people. A listserv builds on e-mail. It links members of a community of interest who share information, discuss, give feedback, vote, track trends and debate issues of mutual interest or concern to their community. A listserv's archive, if it has one, provides a real-time journal that members can access as needed. A listserv can be tailored initially and modified later to meet the needs of its community as it evolves.

Rick Weiler, Chair of the CBA's ADR Section, explains. “Our members’ listserv is a wonderful tool for use by our national CBA ADR community. The origin of the word "community" comes from the Latin “munus,” which means the gift, and “cum,” which means together or among each other. So, community literally means to give among each other.”

“In a way, this is exactly what the listserv allows us to do. We keep each other current on ADR developments across Canada and around the world. We share thoughts and views on issues facing ADR today. It's the gift that allows us to think beyond our own little corner - our own local practice - and see the bigger picture of ADR: what it's achieved, the challenges it still faces, where it might be headed. As Chair of the CBA’s National ADR Section, one of my goals is to see an ever greater number of our members join the listserv and become actively involved in this community.”

Subject headers from exchanges on the CBA -ADR listserv include: “Court Upholds Mediation Confidentiality,” “Ontario Press release re Faith-based Arbitration,” “November Meeting with ADR Institute,” “Working Group on International Commercial Arbitration,” “National ADR Section Update, May 2005,” “The Emerging Phenomenon of Collaborative Family Law (CFL),” “Leading mediation centres join forces to create the first global mediation alliance,” and others, to pick and choose from as they arrived.

How can I reach the CBA-ADR listserv page on the CBA website?

Click http://www.cba.org/CBA/Sections/Adre/Section_Listserv.aspx

How do I become a listserv member?

If you are a CBA member, email altdr@cba.org and request membership in the CBA -ADR member listserv.

As a listserv member, how do I send a message to this listserv?

1) Write your message. 2) Enter a subject. 3) Address it to cba_adrmembers@listserver.cba.org

4) Hit “send” and it goes to all listserv members

As a listserv member, how do I reply to a message from this listserv?

If you want to reply to the sender only, hit “reply.” If you want to reply to all listserv members, hit “reply all.”

Listservs, being about community, are also about inclusiveness – providing choices for members to participate professionally, as an executive member or as a constituent member. One can listen, be informed, and contribute, virtually in the context of other members' contributions which are on the listserv table – as well as follow-up by conventional e-mail, phone or meeting.

Note: Thanks to Marie-Claude Noel, Project Officer, and Rick Weiler, Chair, CBA-ADR Section for their assistance and contributions to this article.

Frank McLean is Technology Liaison, OBA-ADR Executive. Contact him at frank@frankmclean.com or visit www.frankmclean.com. This article has previously appeared in the OBA ADR Newsletter – 2006 edition.

From Jan. 14 to Jan. 16, 2006, the International Chamber of Commerce, with the collaboration of the American Bar Association Section of Dispute Resolution, held the first international commercial mediation competition. The competition, which took place at the ICC's headquarters in Paris, France, involved thirteen schools from the U.S., U.K., France, Germany, and Canada, with mediators and judges from 12 different countries around the world.

The competitors were required to act as counsel and parties before professional mediators, analyze different ADR techniques in accordance with ICC's ADR Rules, and mediate problems devised by a special drafting committee of ADR experts. During the sessions, participants benefited from the experience of international mediation experts, who offered guidance on such skills as effective collaboration between a client and attorney in mediation, use and diffusion of emotional issues, timing of caucuses, identifying interests, handling issues of trust, and navigating cultural nuances in international mediation.

The competition consisted of four preliminary rounds, a semi-final, and a final round. ICC plans to make this international competition an annual event, and hopes that it will make a key contribution to the education of law students in the area of international commercial dispute resolution.

Information: http://www.iccwbo.org

Contacts: nthevenin@uscib.org; lbrennan@uscib.org; kga@iccwbo.org