Private versus public justice

When justice is privatized, the absence of court decisions will impact on the rule of law, which is a cornerstone of our democracy. It is through the interpretation of legislation by judges when they decide issues on a case-by-case basis that the legislation develops the common law and responds to changing community values and needs. Evolution of law is not furthered by privatizing justice.

Collaborative law and mediation provide a way to resolve disputes more quickly and effectively, using a less traumatic process and maintaining personal privacy, since there is no public record. The parties pay for the professionals involved, but they get to choose them. These methods don’t work in all cases. When the parties fail to settle their dispute, they may end up in court anyway. There will always be those cases where the parties or the issues require an outside decision-maker.

Arbitration offers a privatized version of the adversarial court process without its redeeming features, such as an accountable judge and an unrestricted right of appeal. When med/arb is selected, the mediator, who has only persuasive powers, sometimes strongly suggests what he would order if he were forced to arbitrate, which may put unreasonable pressure on the parties to settle on those terms. •

Linda Silver Dranoff, LSM, BA, LLB, practises family law, wills and estates and is the author of Every Canadian’s Guide to the Law (HarperCollins).

Copyright February 2007 CARP magazine