Shifting the Paradigm: Moving from Litigation to Arbitration

AuthorKenneth J Glasner, QC
chapter three
Shifting the Paradigm: Moving from
Litigation to Arbitration
KEnnEth J GlAsnEr, QC
It is not the ronge species that survive, nor the mo intelligent,
but the ones who are mo responsive to change.
—  
The practice of law and the development and acceptance of medi-
ation and arbitration have changed dramatically since I was rst
appointed as an arbitrator in 1967 in my third year of law. The
playing eld has changed. The acceptance of problem solving by
clients and their counsel has grown notwithstanding pockets of
The present challenge is how to impart to lawyers the need
to redirect their reasoning, and their competitive spirit, in advis-
ing their clients on resolving issues. Experience has taught me
that lawyers, like other professionals, have some resistance to
change not only change in process (e.g., the rules of court) but
also change in terms of a paradigm shift the change from one
way of thinking to another.
This concern is not limited to litigators who spend their time
using the “have hammer all nails” approach by seeking resolution
only in the public courts. It also relates to the need for solicitors to
understand, for example, that tacking on an arbitration clause from
some precedent in a contract without understanding the divorce
process has serious and unacceptable consequences for their clients.
KEnnEth J GlAsnEr, QC
After much consideration, I thought it best to deal with the
subject matter not by preparing some academic paper but by set-
ting out in some eclectic fashion primary information for the
reader, providing, wherever possible, considerations for the prac-
titioner entering this problem solving area with an emphasis
on domestic arbitration.
I have in this exercise relied upon papers I have written in
the past together with papers and information gleaned from col-
leagues. Most of the caselaw and legislation referred to is from
British Columbia. There is corresponding caselaw and legislation
in other provinces.
Hopefully, you will take “a view from the balcony” with the
result that you further understand the benets for your clients of
various forms of arbitration.
Legal culture has changed in the last thirty years. The skill set of
lawyers of the 1970s is inadequate for problem solving in this dec-
ade. Professor Julie Macfarlane, in her book The New Lawyer, notes
as follows:
The new lawyer takes on all the traditional professional responsibil-
ities of counsel as well as some additional ones. These include
the responsibility to educate the client on a range of alternate
process options, to establish a constructive relationship with the
other side that does not undermine her loyalty to her client, to
commit to the good faith use of appropriate conict resolution
processes and to model good faith bargaining, attitudes, to an-
ticipate pressures to settle, and to advocate strongly for a consen-
sus solution that meets, above all, the needs of her client. It is in
relation to these additional responsibilities that the new lawyer
faces the greatest challenges in developing an appropriate profes-
sional response to new (or recongured) ethical dilemmas.1
1 Julie Macfarlane, The New Lawyer: How Settlement Is Transforming the Practice
of Law (Vancouver: UBC Press, 2008) at 221.
Shifting the Paradigm: Moving from Litigation to Arbitration
Rodney MacDonald, in a discussion paper, cites the Austral-
ian Law Reform Commission: “‘signicant and eective long term
reform [of the system of civil litigation] may rely as much on
changing the culture of legal practice as it does on procedural or
structural change to the litigation system. In particular, lawyers,
their clients and the courts may need to change the ways in which
they perceive their relationships and responsibilities.’”2
Compare the following words from a paper by Peter Behie, QC,
with those in the quotation below from Professor Macfarlane’s
It is hardly controversial to suggest that you and your client
should know where a le is headed. As the inimitable Yogi Berra
said, “If you don’t know where you’re going, you’ll end up some-
where else.” The development of a road map will fulll this role.
More importantly, the early development of a game plan or road-
map is essential if you are to solve your clients’ problems in the
most ecient way and in a manner that puts the client in the
driver’s seat (two goals that I also take to be not controversial) . . . .
I spent the rst many years of my practice transforming
my clients’ problems and concerns into legal issues and the [sic]
advancing those legal issues through the litigation process. I
undertook this kind of approach in a rather unexamined sort
of way. I simply saw myself as and referred to myself as a com-
mercial litigator. I formed litigation strategies sometimes only
vaguely related to clients’ problems and, I am embarrassed to
admit, without a keen awareness of the costs (both soft and
hard) of delivering these legal outcomes.
I began to realize that this approach was impoverished. It
often did not deliver results that clients expected or wanted, or
did so at a price that was unacceptably high. Clients routinely
reported feeling disaected and dissatised. Worse still, I some-
times felt that my training and understanding of the process be-
came an impediment to solutions and outcomes. Often disputes
2 Rodney MacDonald, “Legal Culture” (Civil Justice Reform Working Group
Discussion Paper, 23 February 2005) at 2.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT