For Ismailis, legal justice is non-adversarial

In a recent blog posting (July 16) I argued that there are many kinds of legal disputes where courts ought to be seen as a “valued, but last forum.”  This is not, in my view, just because courts are complex, slow, expensive and inefficient institutions, but because some legal disputes are better resolved by other means.

My view is that it is past time for us to refer to these other pathways to legal justice as “alternate” dispute resolution; rather, they need to be seen as belonging, with the courts, in the mainstream.  I say this not to undermine the courts as fundamental institutions, but rather to enlarge and enrich our conception of legal justice to embrace a broader set of processes and institutions.

Such processes and institutions already exist.  Arbitration is the preferred dispute resolution mechanism for almost all transnational commercial litigation. ( It is interesting that while judges are quick to remind us of the importance of adjudicative independence in our justice system, litigants in commercial disputes would prefer to choose and pay their own adjudicators, and yet  arbitration is nothing if not a form of rent-a-judge, to put it crudely.)  Mediation is increasingly preferred for relationship-based disputes, where there is an issue that needs to be resolved, but the parties will have to continue to work or live with each afterwards.  Other examples could be given.

In this regard, I was recently provided with a copy of a remarkable witness statement filed in a proceeding in the Supreme Court of the United Kingdom.  The witness is Noordin Nanji, of Vancouver.  He makes the statement on behalf of His Highness Prince Aga Khan Shia Imami Ismaili International Conciliation and Arbitration Board (“ICAB”), of which he is Chairman.  The statement explains that ICAB is “part of a global institutional framework that provides a dispute resolution system for members of the Shia Imami Ismaili Muslim community”, usually referred to as the “Ismailis”, on a national and international level.

The ICAB System seeks to encourage the amicable resolution of conflict through impartial mediation, conciliation and arbitration on a voluntary basis, i.e. the parties must be willing to seek an amicable resolution of their dispute.  While the dispute resolution process followed by the CAB System respects the religious principles and values of the community, it is always within the confines of the applicable local law.

Here follow some extracts from the witness statement to illustrate the focus on non-adversarial dispute resolution.  I do not offer these because I think our legal system should adopt Ismaili dispute resolution processes, but simply to illustrate that the adversarial system is not universally regarded as the best way to solve legal disputes.

3.2          The 1986 [Ismaili] Constitution established a dispute resolution system whereby Conciliation and Arbitration Boards would operate at both the national and international level. The system operates in 17 jurisdictions around the world. In some countries, notably India and Kenya, the decisions of such Boards, particularly in matrimonial and personal law matters, though reviewable by the courts, are recognised by the law.

3.7          The primary objective of the CAB System is to assist Ismailis to resolve disputes in an equitable, speedy, confidential, cost effective, amicable and constructive manner and in an environment that is culturally sensitive.  Processes are designed to operate in an equitable manner. Moreover, the Boards, whether arbitrating or mediating, are required to operate in accordance with applicable local laws. In arbitrating any dispute, a panel appointed by one of the Boards will apply the national laws applicable to the relevant dispute, not any "religious" law.

5.2          Once a dispute arises, it is the practice of the Boards first to attempt to resolve any dispute by way of mediation or conciliation rather than arbitration, even in cases where the parties have referred to arbitration only in their agreement. Rules of Conciliation have been adopted formally by the Boards for disputes resolved by way of conciliation.

5.5          The experience of the Boards is that more than 99% of disputes referred to the Boards are dealt with by way of mediation or conciliation. It is only a handful of cases that are dealt with by way of arbitration.

5.6            It is strongly felt  within  the community  that  one  of  the  reasons for  this  high incidence of mediation and conciliation is the fact that the parties, and indeed the members  of   the   community,  have  confidence  that   their  rights   will  not   be compromised and  that  a  fair  and  equitable  resolution  of  their  dispute  will  be achieved through mediation or conciliation by the Boards.

6.6            Muslim ethics, custom and practice strongly encourage the amicable settlement of disputes that may arise in the community between believers. It is recommended that, when a conflict arises between members in the community, attempts should be made to find a peaceful solution either through mediation or impartial conciliation or arbitration between willing parties. Voluntary and impartial conciliation and arbitration for the amicable resolution of disputes is a deeply embedded practice in the Ismaili community going back 14 centuries ... It is from that long tradition that the present CAB System has emerged.

6.8          In essence,  it  is  believed  in the  Ismaili community, as in  the  broader  Muslim community, that when a problem occurs between brothers, the people around should intervene to solve it, and they should pursue all means in order to make peace between them. That brothers in religion should be willing to forgive each other and to reconcile their disagreements is testified to in a large number of Prophetic traditions, both the Sunni and the Shia, as  well as in the traditions of  the Shia Imams. For instance, Imam Ali, the first Shia Imam, has said:

"Do not separate yourself from  your brother unless you have exhausted every approach in trying to put things right with him. ...  Do not be harsh with your brother out of suspicion, and do not separate from him without first having tried to reason with him... Seek reconciliation with your brother, even if he throws dust at you." (The Sayings and Wisdom of Hazrat Ali, published in England, 1994)

6.12        In sum, therefore, the broader Muslim tradition, and specifically the Shia Ismaili Muslim tradition, defines and fosters an ethos for amicable dispute resolution that, unlike the "secular" litigation culture, is non-adversarial. The notion of the winner and the vanquished, where the winner may take all, is completely alien to the teachings of the Ismaili Imams.

Justice for sale? Market values and the law

In the concluding passages of his reasons for judgment in Vilardell v.Dunham, the court hearing fees case, BC Supreme Court Justice McEwan calls in aid the American political philosopher Michael Sandel to argue that:

“the Court cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace…Some  things cannot be for sale.”

 I confess I have not yet read Professor Sandel’s latest book (What Money Can’t Buy, the Moral Limits of Markets) though I have read the article in the April 2012 issue of The Atlantic which distills the book, and contains this wonderful passage:

“The great missing debate in contemporary politics is about the role and reach of markets. Do we want a market economy, or a market society? What role should markets play in public life and personal relations? How can we decide which goods should be bought and sold, and which should be governed by nonmarket values? Where should money’s writ not run?”

I particularly like that sentence “where should money’s writ not run?”  It’s an invitation to explore an aspect of our legal system that I think needs more discussion.

Here are three examples of harm:

-          An arm broken in a car crash caused by a driver’s negligence

-          A reputation injured by the false statements of another

-          An employment terminated maliciously.

What do all three of these harms have in common?  Two things.  First, they are not, in themselves, economic harms.  Second, courts have monetized them. 

The pain and suffering of a broken arm is just that – debilitating, disabling hurt.  The loss of respect and self-esteem that follows an unjustified attack on someone’s reputation injures our dignity and sense of self-worth – it’s just harder to hold your head high when folks are publishing lies about you.  And while the loss of employment income is obviously about money, the affront that occurs when someone is fired not simply without cause, but in a manner that is intended to belittle and scorn can be deeply and enduringly stressful and traumatic.

None of this is about money, though.  It’s about other precious components of our quality of life.

But these harms have all been recognized by the courts as a basis for claiming money damages, when they are caused by a breach of legal rights.   Damages for negligence, damages for defamation, and aggravated and exemplary damages for wrongful dismissal.

I have chosen these examples deliberately because they all come from what lawyers call the common law – that is, the law made by judges.  The right to compensation for physical pain and suffering or injury to reputation, and the right to additional aggravated or exemplary damages in certain cases were not established by legislatures, or governments. They were created by courts. 

I agree with Michael Sandel when we calls us to broaden the terms of our public discourse and grapple more explicitly with competing notions of the good life. I also agree with Justice McEwan that some things cannot (or ought not to) be for sale.  But let’s be careful when we dress the courts and the law in that high-minded notion.  Because one thing the courts have done for hundreds of years is to apply and extend the values of the marketplace into the law.

Oddly enough, I’m not saying this just to hint at a latent hypocrisy in the reasoning of Justice McEwan, although his complaint about the government “selling justice” by imposing court fees is a bit hard to take, given what courts do everyday in putting a dollar figure on anguish.  I actually think it would be interesting to challenge the notion that money is the best – or even an appropriate - form of solace for the harms I have described.  Courts themselves acknowledge that money does not fully repair the hurt of non-economic harms.  But damages for these harms are awarded because… well, just because a poor substitute is better than nothing.

Of course, lawyers have a direct interest in ensuring that this practice continues, because their fees are paid from damage awards.  But although I admit I have never exhaustively researched the point, I have never seen any empirical research into how and in what way money for these kinds of harms actually makes anyone or anything any better.  This is a heretical notion to be sure, in particular given (for example)  the enormity of the on-going project of compensating Indian residential school survivors for their continuing pain and dislocation.  Psychological and economic research tells us that, above a certain threshold, more money does not buy happiness. Perhaps pain and suffering should not be for sale?  What if we were to start thinking more seriously about other forms of redress for non-economic harms?  Where should money’s writ not run?