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| Gary S. Joseph |
The mediator and/or arbitrator is not clothed with the authority of a justice of the court. This can and often does lead to a lack of courtesy to the selected person. Some counsel, particularly senior counsel, have difficulty showing respect when views or decisions are not consistent with their view of the law and the proper outcome of the matter. This is highly problematic and can often either prevent settlement or lead to unnecessary appeals.
Counsel should be reminded that our duty as officers of the court is not limited to times when one is before a justice. We must conduct ourselves with proper decorum at all times in our professional dealings.
Another nagging and long-standing issue for me is the conduct of counsel in dealings with self-represented parties. I personally know of the frustration that often accompanies dealings with those who are not represented but behave as though they are indeed lawyers. Or situations where those individuals are totally inept at self-representation. I remember one trial where the self-represented party paced the court and considered himself the reincarnate of Perry Mason (Note: Some readers may have to look it up to determine who Perry Mason was). After several days of having this person call me “my friend” in court, I rose to beg the trial justice to direct this person to drop that appellation when addressing me. That was done.
Despite the frustrations of dealing with a mediator and/or arbitrator who knows less law than you (or so you believe) and the greater frustrations (in my view) of dealing with an obnoxious self-represented party, we must pause, remind ourselves of our status as officers of the court and behave accordingly.
Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.
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