Keeping the Train Moving Forward on the Tracks

Keeping the Train Moving Forward on the Tracks

It has been one year since I began working with Dr. Macfarlane on the Self Represented Litigants Research Project as the Project Coordinator and I was honoured when she asked me to write the blog this week with regards to issues I have seen arise during this work….here’s a glimpse…..

Train 1 runs from A to B at 105 kms per hour on track 1-A leaving at 12 noon EST.  The other, Train 2, from B to A on track 3-A at 85 kms per hour leaving at 4pm PST. You are standing in the middle of track 2-A. At what time will each train pass you? Oh, and you are on MST. There is also a head wind slowing down Train 2 by 7 kms per hour except when it goes through the tunnel which is 20 km long at the beginning of its route. Now wait, the engineer just switched tracks midway through Train 1’s first hour and it is now headed at 75 kms per hour on Track 4-B, which is under repair and will cause the train to derail 5/8ths of the way through its route and plow directly into your family home, where your children are watching television. What time do you need to be home by to rescue your children before Train 1 derails?

If you find yourself forgetting some or even all the confusing logistical details and reasoning skills that you tapped into for the first part of this puzzle, and instead entirely preoccupied by the fact that the train is ready to take out all that you hold dear, you are now in a similar “mental state” to many of the people who find themselves representing themselves in court.

Principles we traditionally associate with the Canadian legal system like reason, due process and justice, and our own ability to take sensible decisions calmly and in light of the facts, seem distant and disconnected from a very difficult emotional reality. The mental toll of the events that have brought self reps to the point of self representation, and the escalation of stresses once they start along this path, is not factored into solving the litigation puzzle.

Individuals trying to move forward during divorce and family conflict, or those fighting in civil court, are experiencing emotional stress before they even see a courtroom. Add on the unfamiliarity of a system they do not know, the impenetrable language of legalese, and juggling taking time off work/life to be in court, and you have a set of circumstances that can make the calmest and most serene among us feel, well, a bit crazy. .

This week the National Self Represented Litigant Research Project is featured in the National News section of Maclean’s magazine (http://www2.macleans.ca/2013/02/04/courting-a-crisis/#more-344662). Journalist Charlie Gillis interviewed some of the respondents in our study of self reps.

“Tim Summers, an Edmontonian who self-litigated the division of his matrimonial property two years ago, believes he got a reasonable agreement. But the 52-year-old college instructor winces when he recalls the ordeal: “I truly believe I became borderline psychopathic,” he says. “I felt so frustrated, so limited in what I could do. I could write a blockbuster story about the nasty, mean thoughts that went through my head.”

I had the pleasure of meeting Tim while we were in Edmonton interviewing self reps. He is anything but borderline psychopathic. Tim has a calm and easy energy about him and is very well spoken, confident and kind of funny.  He is the guy who holds the door open for the stranger in the coffee shop juggling a take away tray. What Tim’s quote captured is the very loud and clear sentiment echoed by almost every self rep we have interviewed.

The Maclean’s articles, profiling Tim as well as Alison Maclean, another of our intervewees, along with  Justice David Price of the Ontario Superior Court, outline some of the process, procedural and behavioural issues that face self reps, judges and lawyers. Judges such as Justice Price are trying to do the best they can to work with self reps  in a system that wasn’t set up for self-representation.. There are court clerks that go above and beyond to assist people trying to figure how just what time that train is going to derail. There are even stories of lawyers from the “other side” that have been helpful and considerate to self reps. But what types of widely available services do we need to assist self reps before they go “into the trenches” or handling themselves once they get there?  And are there ways to facilitate, as Justice Price states “significant advantages litigants can derive from resolving their disputes themselves.”

With this in turn, making a stressful time less stressful, less taxing on the court system and overall providing empowerment to those who then become a positive part of the outcome affecting their lives?

While working on this project with Dr. Macfarlane over the last year I am always struck anew when I hear about the emotional cost this process takes on those involved, even though I’ve heard and read this same narrative in every self rep meeting and interview. The question I ask, not as a student of law or a lawyer (which I am not) but as the ordinary citizen for whom Tim Summers is holding the coffee shop door open  is “when will be start recognizing the social, financial and emotional toll of self-representation and start working together to move our legal system forward?”

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