A Society of Equals?  In Search of Genuine Dialogue over the Open Letter

Exactly 400 years ago, a group of “commoners” sent a letter to the French nobility, asking to be treated with greater respect “as their younger brothers”.

The nobles responded with horror to being addressed at all by the commoners, and in what they saw as presumptuous terms. “(They) took this appeal as an insult.” (Pierre Rosanvallon, The Society of Equals, 2013). The nobility petitioned the King saying that they were profoundly insulted by the request and asking him “to remind them (the commoners) of their duty and to recognize what we are, what difference exists between us, and tell them that they can in no way compare themselves to us.” (quoted in Rosanvallon, 2013, pg.13).

Almost three weeks ago, the NSRLP released an Open Letter from ten SRLs to the judiciary. The purpose was to convey genuine concerns that many SRLs share about how they are viewed and treated by many (but not all) judges. The hope was that the letter might begin a conversation with the judiciary about those concerns – “our goal here is for a productive dialogue, between reasonable people” – as well as to hear from judges about the challenges they face. “We are ready to take your input regarding what we can do to ease the difficulty of a situation in which lay people rather than lawyers are regularly before you.”

Some of those who were unhappy about the Open Letter asserted that it was not in the spirit of dialogue and collaboration. This is a critique that NSRLP takes very seriously, because our purpose is to encourage meaningful dialogue, not inhibit it.

So in this blog, I want to look more closely at what we mean when we talk about dialogue – what does it look like, how does it feel to be part of a real dialogue, and what are its up’s and down’s for participants?

Dialogue includes bad news

Conflict flows from life. … Rather than seeing conflict as a threat, we can understand it as providing opportunities to grow and to increase our understanding of ourselves, of others, of our social structures. Conflicts in relationships at all levels are the way life helps us to stop, assess, and take notice. (John Paul Lederach)

Engaging in a genuine exchange of views in dialogue may – probably more often than not– produce uncomfortable moments for participants. Explaining to one another what our assumptions and beliefs are about one another – and perhaps asserting some significant concerns and principles – inevitably hurts someone’s feelings, however carefully expressed. As a mediator, I understand this as the essential truth that things almost always get worse before they get better when people start to talk.

The SRLs who wrote the Open Letter worked very hard to use a respectful, inclusive tone. That doesn’t mean that there weren’t hard messages in there. If there weren’t, there would be no need for an Open Letter or a dialogue at all.

Dialogue begins with identifying a problem, not mandating a solution

 The problem that the Open Letter describes is that many SRLs (of both genders and every age, income level, and educational background) experience at least one or more of the judges they appear before treats them in a way that feels bruising, dismissive and disrespectful. This experience is described in detail in the original SRL Research Study (https://representingyourselfcanada.com/wp-content/uploads/2014/02/reportm15-2.pdf at chapter 11). The same issue is clear in transcripts of judgments that regularly come across my desk in which judges speak to SRLs in ways that seem inconsistent with judicial dignity, and which may be offensive and even traumatic for the litigant. And of course SRLs also report positive experiences with judges they appeared before, but this is not the dominant theme.

We all know that this is happening in some courtrooms. Lawyers also see it happening, but many tell me they are not sure what they should or can do about it. Its not every judge of course – there are many who are making a phenomenal effort to rise to this new challenge of courtroom management (at the same time as they face a growing case management burden). The work that these judges are doing needs to be more widely talked about and recognized.

The first step in a dialogue is to identify the problem. The influx of parties without counsel into the courts creates an enormous problem for judges and litigants (and lawyers) alike. Judges are under growing pressure, facing long case management lists and growing numbers of judicial vacancies. We should not be surprised that research data shows very consistently that judicial impatience (and sometimes rudeness) with SRLs is one manifestation of these systems challenges.

The Open Letter says: “We write this letter not to lay blame, but to try to explain the widespread experience of SRLs in our legal system and to solicit your support in bringing about small, meaningful changes in the climate of the courtroom….”

The Open Letter is saying there is a problem and it is asking – can we please talk about it together?

Dialogue must allow each participant a voice

The Open Letter was written to get the attention of the stakeholders in the access to justice debate. In practical terms, it is very difficult for SRLs to get these points across and feel that they are being taken seriously.

The Canadian Judicial Council offers a complaint mechanism, but a quick review of published decisions in the last three years found just two cases in which judges were censored for their inappropriate treatment of litigants, just one involving a SRL. In all the other cases reported on the CJC website (https://www.cjc-ccm.gc.ca) the complaint was dismissed. Adjudication may not be the best approach here – it does not resemble a dialogue – and certainly not an adjudication process in which the complainant seems to be so often on the losing side.

For there to be a dialogue, there must be a means of making each voice heard. This may of course include challenging the message, but it must begin with listening to it, and designing an effective and credible means of (two-way) communication.

Dialogue must afford each participant respect

Some of the reactions to the Open Letter suggest that it is seen as insufficiently deferential to the judicial role. This is rather puzzling to me since the “tone” of the Open Letter, like the commoners plea to the nobility in 1614, is extremely deferential and respectful.

This suggests that the real offence is not caused by the tone at all (if you need to refresh your memory of how the letter was worded, you can read it again here: https://representingyourselfcanada.com/2014/09/15/an-open-letter-to-the-canadian-judiciary-a-first-step-towards-a-dialogue-between-reasonable-people), but rather the fact that was written at all.

But that is the nature and purpose of dialogue. If you are committed to dialogue and collaboration over our access to justice crisis you have to be willing to accept that others have the right to speak up – respectfully – and not rule them “out of order” for daring to express themselves at all. SRLs need to hear from judges about the challenges that they face – the Open Letter explicitly invites this – and we all need a forum in which a genuine dialogue can begin. The NSRLP is committed to developing such a forum, and assisting with such a dialogue.