Originally published in The Lawyers Weekly, December 15, 2006.
In a recent article, columnist and lawyer Karen Selick proposes what she terms a "radical solution" and suggests that litigants should be free to pick their judge (The Globe and Mail "Comment", Nov. 15, page A25).
In the context of the recent proposals to reform the judicial appointment process, she says, "No matter whom the committees include or exclude, someone can always allege bias." She then proposes a solution – one that she calls "radical" but that she says "would resolve the current issue and many other concerns about bias in the judiciary."
The concern for which the solution is proposed is "bias". She seems to believe that judicial bias – actual or perceived – is a significant concern for litigants. Her examples are judges who favour the Crown in criminal trials, or wives in matrimonial trials. Whether bias is in fact a significant concern of litigants is left for supposition. In my experience, bias is not their main concern about those who adjudicate their cases, although it may be a concern in some cases.
The concern about the judges who adjudicate litigants’ cases is much broader – litigants want adjudicators with a range of attributes, skills, experiences and knowledge. What they want depends on the particular case and on the litigants. More often litigants want their cases to be determined by individuals who understand the particular subject matter, industry and field of law, and individuals who run an efficient, courteous and fair hearing (which is not just about the absence of bias). They also are concerned when the court system is not "user friendly", when judges and the court administration fail to take a business like approach and fail to reflect a reasonable "customer service" attitude.
But whether Selick has found the right concern, she may have identified the right problem when she says that the "problem lies not in the character or opinions of the individuals chosen to be judges ... The problem lies in the fact that judges are assigned to cases without any input or veto power on the part of the litigants … who appear before them."
"The solution", proposes Selick, "is to allow the litigants on both sides of the case … to select a judge ..." She notes that this would effectively turn judicial positions "into a series of contract positions" and that "[l]awyers who wanted to become judges would have to take a training course and pass an exam … Judges would be paid according to the amount of work they actually did ... . "
Selick concludes by saying, "This fundamental change in the manner of selecting judges will, no doubt, be frightening to many. But as the issues placed before judges become ever more politically charged, this is a solution that must be considered."
As radical as Selick may think her proposal may be, it is not radical at all. Her proposed system exists today and increasing numbers of litigants are benefiting from it.
It’s called arbitration.
In arbitration, the parties agree on their judge (called an arbitrator), just as Selick proposes for the courts. Or they may choose to have a panel of three arbitrators. If they can’t agree, they can ask an arbitration institution or other appointing authority to make the choice for them. They can also decide in advance on criteria for their arbitrator (for example, certain kinds of expertise).
Just as Selick contemplates, arbitrators work under contract for the specific job; usually they have taken training and may be certified; and they are obligated to be independent and impartial.
Not only can the parties select their arbitrator but, with few limitations, together they can tell the arbitrator how fast the case should proceed, what procedural rules will be used, the extent of prehearing examination for discovery and document disclosure that they want, what types of evidence can be considered, what kind of hearing will take place and how long the arbitrator can take to produce a decision. The parties can decide on almost complete confidentiality for their arbitration and they can agree to rule out certain types of remedies, such as punitive damages.
Parties can agree to have almost every type of private dispute determined through arbitration.
Of course one difference from using the court system is that the parties are the ones to pay their arbitrator. But in many situations the numerous advantages of arbitration outweigh that cost by a considerable margin.
Arbitration has been growing rapidly in Canada in recent years – so much so that leading judges are well aware that they are losing business to arbitration, and they, along with leading courtroom lawyers, are questioning the ways that the courts operate and what the court system can learn from arbitration.
It is true that the court system may be able to adapt some aspects of arbitration. In a recent article "Messages from the market: What the public civil justice system can learn from the private system" in The Advocates’ Society Journal (September 2006), Ontario’s Associate Chief Justice Dennis O’Connor suggests that "the public system can learn from the private system, so it can aim to improve the public system and ensure its continued vitality. I think it behooves us to understand why many cases are going private these days." He goes on to discuss six "lessons", all of which are sound and would improve the public system if they could be implemented. Associate Chief Justice O’Connor stresses, "From my own experience, when I was still practising, I found that the ability to select the judge was the single most important factor in clients’ decisions to go private." (Most likely he was thinking more of the domestic context than international context, in which choice of adjudicator is but one of several important factors that leads parties to choose international arbitration in the vast majority of situations.) He concludes, "The market is sending us clear messages. The challenge is to listen."
So litigants seeking to choose their judge and obtain the many other advantages available in arbitration should agree to arbitrate. Arbitration is something that all those who draft contacts, and all litigants and their counsel, should consider.
But just because there are benefits to parties being able to choose their judge, should our courts copy the arbitration model and require parties to agree on their judge? Perhaps not.
Should our courts not build on their own competitive advantages, albeit with improvement to the current "product" that they offer? There are some dimensions – such as offering diversity in the judges available to try cases – in which our courts appear to have made greater progress than arbitration has made.
We also need to consider the implications of bringing a complete free market to the judicial system. Do we want our judges promoting themselves, even in a tasteful manner, as arbitrators may do?
There are alternatives to adopting a system in which parties need to agree on who will be their judge. One alternative, as Associate Chief Justice O’Connor suggests, is that "perhaps we ought to consider some further, modified specialization in our public court system – more specialty branches or simply making judges available who are known specialists" in an subject. Doing that would provide expertise for litigants and at the same time develop the law in specialized fields in a coherent and reasonably consistent manner. A second alternative would be to give each party one veto of the judge assigned to their case.
Karen Selick has made a meaningful contribution to an important debate that should be continued by both those interested in improving our courts and those involved in the world of arbitration.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.