“Access to Justice” – A Misleading Euphemism


 

“Access to Justice” – A Misleading Euphemism

Everyone expresses concern that the high costs of legal services necessary to conduct a dispute in the courts of Canada make it practically impossible for many people to effectively seek redress in court. Usually the problem is not identified in this plain spoken way. Usually the problem is discussed euphemistically as one of “access to justice.”

But the problem is not one of “access.” We have a court system that is admirably open, honest, and principled in how it deals with disputes. In very many respects we are fortunate in Canada with the quality of our justice system. But it has a serious problem.

The problem is how to pay for the legal representation that is necessary to present a case in court. For large businesses and government this is not a serious problem. Rather it is an unacknowledged feature of the system. For them, an expensive justice system works well. They can bear the costs of litigation. At the same time people of average means often cannot effectively bring claims against them. In the case of businesses, when they are sued, they can pass along those costs to customers, or call on insurance, and they can tax deduct necessary legal expenses. In the case of government, the costs can simply be passed along to taxpayers.

It is not a secret that inequality of economic power can affect the outcome of a dispute. This gives hack clash royale rise to a problem of “justice”, plain and simple. Many claims for redress cannot be effectively brought. Many claims must be compromised on unfavourable terms because of the disadvantages citizens face in undertaking litigation against well-funded defendants. This “legal injustice” is but an aspect of social or economic injustice. We are accustomed to understanding that social and economic injustice does not get addressed effectively without political pressure for change. We recognize in our democracy, that political issues are everyone’s legitimate concern. We must extend that recognition to issues of legal injustice. Reforms to our court process are not just the business of lawyers and judges, who after all are not themselves, the ones adversely affected by this problem.

Logic, Listening, and Settling Disputes


 

Logic, Listening, and Settling Disputes

Logic can tell us important things about settling disputes. For example: That a settlement can’t happen without both sides (or all sides) agreeing. That settlement may be difficult without understanding the perspective of the other side(s). You can’t understand something without knowing about it. (We are talking logic here.)

But this is about as far as logic can take you. Logic cannot tell you how the other side sees the issues in dispute. More significantly logic cannot tell you how the other side feels about those issues. It is most unwise to assume that you understand that perspective without hearing it from them. (Here is something you can try at home. Try telling your spouse that you understand their perspective completely without listening to them. See how well this works.)

Similarly since settlement is a reciprocal process, it is unwise to assume that the other side understands your side of the dispute without you telling them about it. Listening includes demonstrating that you have heard what has been said. You should be able to repeat back the sense of what you have been told. If you can’t, get them to elaborate, i.e. to repeat themselves, so that you can do so. Take notes if you need to. Then paraphrase fairly what they are saying. Get them to confirm that you have understood what they are saying correctly. When they correct you, similarly confirm that you have understood the correction. Take your time so that there is a moment when you have fairly put their position, and they can see that you have understood it. Unless and until you have understood and absorbed the other side’s best points, it may be difficult for the other side to listen to your best points.