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Lawrence I Z Pinsky

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Manitoba -   Canada -   Winnipeg

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Profession Lawyer
Membership Law Society of Manitoba
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Since 1993
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Location Manitoba - Canada -   Winnipeg

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Phone (204)949-1312
Fax (204)957-0945
Website https://www.tmlawyers.com

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Taylor McCaffrey LLP

  Manitoba - Canada -   Winnipeg

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Articles and news published by Lawrence I Z Pinsky


Family Law
Published on 2/24/2021 12:26:31 AM

On Fair Hearings – Thoughts on Procedures in Practice

“Do not complain of life’s unfairness. It is never fair – at best it is impartial” – David Gemmell, Lion of Macedon “In case of dissension, never dare to judge till you’ve heard the other side” – Euripedis, The Children of Herakles “We don’t need to be good. But let’s try to be fair”. Holly Black, The Cruel Prince “Armed neutrality makes it much easier to detect hypocrisy” – Criss Jami, Killosophy It is a basic tenant of any justice system not based purely (or perhaps more appropriately, impurely) on coercion, that the public accept the decisions flowing therefrom as being just. To be accepted as just, the proceedings must be perceived to be fair and decisions rendered based upon the evidence and a proper legal framework. While the structural framework upon which the evidence is presented and the legal issues addressed can and often should be much more flexible in arbitration than at Court, flexibility cannot come at the cost of fairness. Deciders, (to paraphrase President George W. Bush) here arbitrators, must remain impartial at all times. Beyond remaining impartial in fact, they must be seen to be impartial and above reproach. Impartial does not however mean inhuman. On the contrary, deciders must be seen to be human and respectful. They must be and be perceived to be fair. In conducting a fair hearing it is critical that all parties believe that they have been heard on all relevant matters, have had a fair opportunity to present evidence pertinent to the matters in issue, were treated with respect, understood the process (or had a reasonable opportunity to do so), understood the proceedings, and that the decider, is unbiased, motivated only by respect, trust, and helpfulness. Prior to conducting a hearing it is important to check for issues of domestic violence and power imbalances. Cultural awareness in also key. Insofar as those issues are canvassed elsewhere, there will be no exploration of those issue here. Suffice it to say that at every step of the way the arbitrator must do what they reasonably can to ensure that there is a level playing field and that power imbalances and forms of abuse are defused. At the same time, the decider must be careful not to interfere unnecessarily in the process. They must be seen to maintain neutrality throughout. While early explanations of process can help and sometimes must be repeated, they do not always suffice. There are certainly occasions when more is required. In the United States, the Centre for Court Innovation developed an evaluation toolkit to measure perceptions of fairness unimaginatively called Measuring Perceptions of Fairness: An Evaluation Toolkit. The toolkit resulted from a multi-year collaboration between the Centre for Court Innovation National Judicial College, and the US Department of Justice’s Bureau of Justice Assistance. Research referenced in the Toolkit suggests that when litigants perceive the court process to be fair they are more likely to comply with court orders and to follow the law in the future regardless of whether they perceive that they won or lost their case.[1] The Toolkit relied in part (if not large part) on Yale Law School’s Tom Tyler’s work in the area. He identified several critical dimensions of procedural fairness: Understanding – the parties’ comprehension of the language used and the decisions made; Voice – the perception that a person’s side of the story was heard;  Respect – the perception that the officiants (lawyers, staff, the judge, or decider) treated them with dignity and respect; and Neutrality – the perception that the process is unbiased and trustworthy. To the above four criteria the toolkit added a fifth dimension, helpfulness. The study underlying the toolkit found that helpfulness was a key factor in parties feeling that the process was fair. That is, when litigants felt that the decider and other staff including counsel were interested in their personal situations to the extent permitted by law, they were more likely to perceive the process as being fair (whether they “won” or “lost”). The research underlying the toolkit tested these principles in multiple court settings from small claims to family court to criminal justice contexts. There is no reason to believe that these same elements of fairness would not apply to family law arbitrations. An analysis of the self-assessment checklist and related materials found in the aforementioned toolkit, provides a useful roadmap to optimize fairness in family law and any other arbitration or decision making process. The following factors and underlying practices, based upon the five dimensions of fairness set out above, many of which are inter-related, might well serve as useful reminders (albeit with different factors weighted differently in different arbitral scenarios) in conducting fair hearings. 1.         Understanding: a.               At the commencement of the process provide a summary of what to expect during the appearance; b.               At the end of the process verify that the parties understood what is expected of them going forward and any procedural or other decision; c.                During the process provide a reminder of future dates and requirements; d.               Consider at the front end language, cultural, and other issues / barriers and adapt communications accordingly – including interpretation services but also your own written communication; and e.               Try to avoid jargon or explain in common language and invite respectful feedback. 2.         Voice: a.               Ensure that the voice of the parties, and where appropriate, children, are heard or that a mechanism is in place to do so; b.               Confirm that the participants understand and have had an opportunity to share all relevant and appropriate information; and c.                Ensure that all can be heard and check to make sure there are no technical or other issues. 3.         Respect: a.               Start on time and/or address any timing issues; b.               Begin with introductions where appropriate; c.                Explain expected etiquette and model it; d.               Explain the process and park any attitude outside the proceeding (no matter how richly deserved); e.               Make eye contact and properly address counsel and the parties; f.                 Avoid jokes – especially off colour jokes – though wit and appropriate humour can be employed with the right parties – gauge the situation; and g.                Use respectful language. 4.         Neutrality: a.               Avoid showing too much familiarity with counsel especially without advance comment and explanation while ensuring neither party takes issue with it; b.               Avoid unilateral communications; c.                Avoid showing preference for one side or the other; d.               Ensure cultural and related sensitivities are respected in the process; and e.               Disclose at the front end and obtain consent as to process or if required ensure decisions are fair and parties are heard. 5.         Helpfulness: a.               Ensure helpful communication electronically, on websites and otherwise; b.               Explain process and provide navigational aids whether the process occurs by video or in person; and c.                Be familiar with supports re possible referrals and discuss how they might be deployed. In this context, the criteria listed above are not meant to be exhaustive. Further, as aforementioned, depending on the arbitral setting, some factors will be more applicable than others (for example the practice in the context of a final offer arbitration will differ form a more formal arbitration where witnesses are called). They will however help in building a framework of fairness. In Procedural Fairness: A Key Ingredient in Public Satisfaction, a white paper written for the American Judges Association (which at the time had 150 Canadian members in addition to 2500 US member judges) Kevin Burke and Steve Leben noted that procedural fairness is critical to the public’s perception of justice. They quoted Tom Tyler’s work in finding that “most people care more about procedural fairness – the kind of treatment they receive in court – than they do about “distributive justice, i.e. winning or losing a particular case”.[2] Done right, the arbitration model generally, and the mediation /arbitration model more specifically, have far more capacity to deliver that satisfactory result fairly, faster, and with less financial and emotional expense than most Court models. From flexibility to reciprocity amongst all the players in a mediation/arbitration model, presently it is in this forum, far more than in any other more formally restrictive setting, that the public should be able to find satisfaction. No doubt many competitively spirited people (litigators among them) might take issue with Tyler’s findings. Generally when in a fight of any kind, “winning” is to be preferred. That however begs the question, what is winning? Many have argued that parties do not win in family law. For the purposes of this brief paper on procedural fairness, suffice it so say that fairness and perceptions of procedural fairness are critical win, lose, or draw. Hopefully the factors and principles set out above will serve as a useful aid in establishing a process that is, and is perceived to be, fair. Where the arbitrator builds a framework of fairness from the start that carries on throughout the process up to and including decision writing and enforcement (where applicable), parties will be well served and far more likely to have a satisfactory experience. [1] Tyler, Tom R. Why People Obey the Law. Princeton University Press. 2006[2] Tom. R. Tyler et al., Social Justice in a Diverse Society (1997); Jonathan D. Casper et al., Procedural Justice in Felony Cases, 22 LAW & Soc’y Rev. 483 (1988); Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 Law & Soc’y Rev. 513 (2003) DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged. If you would like legal advice, kindly contact the author(s) directly.

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