JusticeTodd Archibald

2Well, thanks very much for inviting me on board. It's nice to be here too.

4You know, I was a judge for 22 and a half years in Toronto on the Superior Court of Justice. It was a fantastic career. I loved every second of it. Challenging, fulfilling, helping other human beings. It was a great privilege and honor to be a judge. I'm now mediating and arbitrating, and do I miss it? Of course I do, but it's a new chapter of my life, and it's a different chapter now as a mediator and as an arbitrator, and I'm having challenging, fun times again. Thank you.

6Being an arbitrator or being a mediator in the private sector, of course, you don't have the judicial trappings that you would normally have as a judge in terms of the whole court apparatus, the court staff, court assistants, all that, which is fantastic. As an arbitrator, you're pretty much on your own, subject to any staff members that you do hire. The great thing about arbitration, of course, is as opposed to the cases, as opposed to you as a judge, or the case gets assigned to you as an arbitrator, the lawyers seek you out. And they seek you out because of your reputation, perhaps, because of your background, because of their familiarity with you. And that's fantastic.

7It's a privilege when you get sought out to be a potential arbitrator. Same goes as a mediator. The difference in mediation as opposed to a judge, and this is an important point, most judicial pretrial mediations take place around 3 months or 4 months before trial. And there's a lot of pressure on the parties at that point, with the trial looming on the very near horizon, to get the case settled. Most of my mediations now take place sometimes even before the Statement of Claim has been issued, or 3 years before the matter gets set down for trial. So it's a whole different set of circumstances and pressures at that point. And of course, you don't have the looming trial date, nor do I have my robes on to assist me in terms of the adjudication of the mediation.

8So it's a very different animal and a very challenging one and fantastic, both of them, arbitration and mediation.

10That's right. And I was very lucky. I started judicial mediations in the year 2000. That's 26 years ago when I was in my first year of being a judge. And at that point, the senior judge in our court was Warren Winkler, who became my regional senior justice, and then he became the Chief Justice of Ontario. Chief Justice Winkler is one of the greatest mediators of all time, in my respectful view. I learned so much from him, from observation, from discussions, from teachings. I took his courses. It was a wonderful experience and a wonderful education, and I owe a great deal of my debt to Chief Justice Winkler in terms of if I have any abilities, he certainly is significantly a factor in that concept.

11So as a judge, I ended up doing about you know, it's hard to say, but let's say 1,500 judicial mediations over a 22-and-a-half-year career. And in the early days, in the years 2000 and 2001 and 2002, mediation in Ontario was still largely an evaluative process as opposed to what it's evolved to now. We're still kind of in the infancy stages of mediation if you think about it. Mediation's only really been around for 40 years. It's evolving at the speed of light. And AI, of course, is evolving it even faster. But we've moved from the evaluative concept to the facilitative, transformative, and evaluative approach. In other words, it's a tripartite approach looking at interests, not just the rights of people, but trying to discover what their real interests are behind their rights, spending thoughtful time in active listening, exploring the backgrounds of the parties.

12None of that was really done back in the old days of evaluation. Evaluation. In the old days of evaluation, the judge would come in and basically say, well, this is what this case is worth, spend 10 minutes with the parties, and the parties would shake their hands and say, we disagree, and that would be the end of the meeting, end of the judicial pre-trial. So judicial pre-trials evolved when there's time, of course, and there's often not a lot of time, as we all know, because of all of the pressures we have in the system. But if you have a couple of hours, if you do, if you have the luxury of a couple hours, you really do have the opportunity to explore the interests versus the rights of the parties, get to know them, get to, for them to know you and to respect your approach.

13And that's critical too, so that when you do speak to them about their vulnerabilities, they listen and they hear and they accept and they respect your approach. That can't happen if you have 20 minutes. It's an evolved process, a purgative, if you will, process, an evolutionary process that goes from stage A to the stage Z, which is where the case settles. So you have to get people very much not only invested in their own case, but invest it in the mediated process, the judicial pretrial process to get it settled. If people respect you, respect the process, and feel that they've been heard, there's a very good chance the case will settle.

15Yeah, Pulat, thanks. That's a tough question. The first thing I want to say, my first observation is I went to law school to be a trial lawyer. I love trials. I love the engagement of a trial, cross-examination, the thrill, the excitement, sitting on the edge of the seat, your closing addresses. There's nothing better as a barrister than doing trials, whether judge alone or judge and jury. They're incredibly exhilarating, incredibly challenging, and incredibly fulfilling. It is fantastic. Most cases though should settle. Sure, there are policy cases and intractable cases that will inevitably go to trial, but by and large, the vast majority of parties want their cases to settle with a happy ending, as opposed to traveling all the way down the train track to a trial, and with the inevitability of a judge then reserving on it, and then with the uncertainty too of what a judge might do.

16So as a judge at trial, in my respectful view, you're the trial judge. And you're not the judicial pretrial judge. So in my view, and this is only my perspective, I don't think you can wear two hats. I don't think you can be the trial judge and also attempt to be the mediator judge. I don't think that works. And in fact, I think they're incompatible. So if during the trial, I have a perspective that I think the parties should consider the possibility of mid-trial pretrial, I will raise that as a trial judge, but go no further than that. I will say to the parties, would you like to have a mid-trial pre-trial? If you don't, I totally respect that, but if you do, as an avenue for discussion, I'll arrange that.

17And if they agree to it, of course, I will already set that up in such a way that there will be a judge ready, waiting, waiting in the wings for that mid-trial pre-trial. I find mid-trial pre-trials surprisingly to be quite effective. You wouldn't think they would be because at that point when you're in the middle of the trial, you would have thought all of the attempts to settle the case have occurred and they're exhausted. But surprisingly so, the tension of a trial is kind of like an elixir that still encourages settlement. So I would say to you on an anecdotal basis, and no more than that, that mid-trial pre-trials are at least 50 to 60% successful.

18And that's a gigantic number if you think about it.

20And so it's a tool for every trial judge and every lawyer, every trial lawyer to consider. That if you're in the middle of the case, you don't necessarily have to travel down the track all the way to its inevitable ending with a judgment. Keep your antennae up, and if you think that a mid-trial pre-trial is going to work, you should raise it too, as opposed to the judge. But the judge can raise it, and lawyers can raise it, and in my respectful back experience, in my respectful submission, they can be quite, quite effective.

22Very true. And that's largely because at that point in the case, the lawyers have tested their own theories. They've at least done one examination in chief, perhaps a good cross-examination. They kind of know, they have a pretty good sense, their fingers on the pulse as to the likelihood of success at that point. Whereas before the trial starts, it's still kind of like, maybe we got a good case, maybe we don't. Sure, we've done the examination, sure, we're ready to go, but you never know until you put the witness up on the stand at trial before the judge or the jury as to how effective and how persuasive and how credible they will be. And after that witness is— especially the primary witness is through in terms of both examination and cross-examination— it gives the lawyers a chance to go to take a deep breath and reconsider the possibilities of settlement.

24Well, certainly if it comes up in the middle of the trial, I would hope the lawyer has already apprehended this as an issue before the trial was started, and at least at the trial management conference, if not earlier, it is raised so that the judge before the trial has the factums and can deal with the issue before the actual trial commences. It is difficult for everyone— judge, jury, lawyers— if the issue springs up out of the air in the middle of the case. If it's a very serious issue, it could shipwreck the trial because, for example, people need time to respond. People need time to put in factums. Obviously, the procedural objections that occur in every trial, a judge has to deal with them in real time.

25And carry on as best he or she can. And sometimes if they have to write a decision, they do so overnight and provide it to the parties, or even they provide the decision at the end of the case. But you got to keep rolling with the trial and be as effective and as efficient as you can be. But it was a very, very serious legal issue. I would hope, and in most cases I would think, the lawyers would have apprehended the importance of that issue and dealt with it in advance of the trial so that the trial judge can deal with it before the actual commencement of the trial. That would be the best approach.

27In my respectful view, it should not be a consideration. You do the best you can based upon your principle, your knowledge, your experience, your background. You always try to do the very best you can in terms of the law, and in terms of the facts of the case. And if you're looking over your shoulder about what a Court of Appeal might do with the decision, in my respectful view, that's not really appropriate.

29I did. Yes.

31Only electronic motions, but Chief Justice Morawetz did a terrific job, as we all know, in terms of the evolution of the court process moving from paper to electronic, and he did so on a very efficient and very quick basis, given the fact that no one saw the pandemic coming, and all of a sudden it arrived, and all heck broke loose because of it.

33Electronic document is the wave of the future and the way of the present, and it's about time we got there. It's more effective, It's more efficient, and it's more cost-effective too for the clients and for the parties. It streamlines the process much better than the old Pony Express of paper. In terms of trials and in terms of motions, there's a balancing as to whether you do it on Zoom or on Teams or whether you do it in person. Now, I'm an old-school judge. I'm in my 70s now, an old-school lawyer. So of course I love the in-person medium and always will. So my own personal idiosyncratic perspective is on trials and on major motions, I would prefer to be in person, but that's my own perspective.

34Another lawyer, another judge may have the, the exact opposite perspective, which is it's more effective to do things electronically. So in terms of that, it really is up to the parties whether— and it should be up to the parties to select the forum, whether in person or on Zoom or on Teams.

36Thank you for the question. I love mediating because I love helping fellow human beings. From my perspective, I was lucky and honored. I had a great career from my perspective. And so now as I mediate, because I want to pay it back and pay it forward. Because if I can help human beings who are trapped in a legal vortex and get their case settled and give them a little bit of peace and serenity, that is very, very fulfilling for me. Some of the traits that I would submit are important to be an effective mediator: Number 1, patience. You can't rush the process. If it's a 1-day mediation, it's the party's day. Not the mediators.

37If the party wants to spend an hour and a half talking to their respective client about the next offer, they should get that hour and a half. The parties need to be really invested in the process before they reach the settlement. If you rush it, you end up not really actively hearing the parties. You don't give the parties sufficient time to feel that the process was both purgative and cathartic and the investment value on the parties. Most of my mediations take about 7 hours. And at 2 o'clock in the afternoon, if I start at 10 o'clock in the morning, the vast majority of them look like they're going to fail, fall flat on their face.

38The skies are dark and lightning is out there. If you hang in there with the clients, and I always say this to all of the clients, especially the client at 2 o'clock says, this is useless, Archibald, I want to go home. I'll say to the client, "Why don't you just sit down for a second, get a glass of water or another coffee, and make another offer, however small, however tiny." Keep the process moving forward. Because of the goalposts are like this, with every successive offer, the goalposts are shrinking until there's a point where gravity takes over and the case settles. So if you can encourage and persuade that party who's reticent and wants to leave to sit down and make one more offer, however tiny, the other side's going to make another offer and you've shrunk those goalposts.

39And magically, 90 times out of 100, at 2 o'clock when it's pouring rain, at 5 o'clock the sun comes out and the case settles. I had a case yesterday, without giving you any contours of that case, where at 11 o'clock the one side said, there's no way in God's green earth I will ever settle this case for X. 6 rounds later, at 9 o'clock last night, that party settled for X. So my point is, you really need to hang in there. Patience, absolutely essential. If you don't have patience, you're in the wrong profession as a mediator. Next, second P, perseverance. As I mentioned to you, at 2 o'clock, when it looks like it's very bleak, Wuthering Heights time.

40If you can hang in there and just persuade the clients not to leave and to make another tiny offer, or even take a break and go for a walk with that lawyer and the client metaphorically, change it up, talk about the Leafs— probably a bad topic these days— but just change it up for a few minutes. Change the station. It's remarkable what happens. People then relax again. They get re-engaged and they make another offer. So perseverance. Don't take no for an answer unless everybody tells you no. And when everybody tells you no, I still don't take no for an answer. And I still try to get them to make one more offer. And then I give up if I have to at that point.

41So perseverance is key. Next, professionalism. Always. Because the proceedings are informal, It is too easy to be too casual. We can't forget that these are legal proceedings, and we can't forget the importance of these legal proceedings to the parties. Thus, respect, courtesy, professionalism at all times are a key principle of settlement. And the lawyers too, and the parties, have to respect the process, respect each other, and respect the mediator. If the R word's not there, the case is going to crater. Another one is principle. What I like to say to the parties at the start of any mediation is that I am a person of principle. I never talk out of two sides of my mouth.

42If you ask me a tough question, I'm not going to run from it. I'm going to answer to the best of my ability. You might not like the answer, but I owe it to you to explain it to you as best I can from my 48 years experience. I think it's 48 years now, it's hard to believe. 48 years experience. So it is really critically important as a mediator that you don't talk out of two sides of your mouth. And the vast majority of us don't do that, of course. I would hope none of us do that. And you don't deflect. You answer the question however hurtful it might be. Because you owe it to the clients.

43That's why they retained you. Because part of the process is evaluative. And if they ask you an evaluative question, assuming that they ask it at the appropriate time, like for example, if evaluative questions get asked of me, like, what do you think it's worth at 10:30? It's way too premature to get into that. If you ask me that at 4:30, I'll engage you on that topic. But at 10:30, of course, I'm going to move past that because it's way too early. The parties are not yet invested in the process. There haven't been 2 or 3 rounds of discussions. The parties have not been there fully involved for 6 hours. At the 6-hour mark, absolutely, if we hit a crater, then I move from the facilitative hat to the evaluative hat.

44And hopefully, it's a relatively smooth transition. So principle, I think, is really critically important. The parties have to know that you're an honest broker. If they believe that, that when you give them those tough words at whatever time, when you tell them about their weaknesses at whatever time in the mediation, they hear you, they absorb it, and they accept it. And that's of critical importance. So principle is important. I also call it a 3 AM rule. If I wake up at 3 o'clock in the morning after an unsuccessful mediation, do I go back to sleep or do I go, what the heck did I do there? How come I missed that? Why didn't I say that?

45Hopefully most 3 AMs I go right back to sleep because I know that even though it wasn't successful, I gave it all that I had and more to all the parties. And I turned over every stone I could to assist the parties, even though it didn't end up in a settlement. Thank you very much for that question.

47Extremely important. We're all human beings. Part of the meditative process, that I call it mediative of course, process is this: knowing the human beings that are across from you on both sides of the table, learning about them, showing interest, empathy, even sympathy, but at least understanding. So I will spend the first, after my openings and after counsel's openings if there are any, I will spend a good hour with the parties, not even talking about the case. Talking about them, their backgrounds, their lives, what interests them, what pains them. Because the more I understand them, the more I can perhaps facilitate the process more effectively, or the more that I can help them. Also, it's really necessary to develop a rapport with the parties.

48They have to know that you understand to the best of your ability their interests, their positions, and their rights. If they believe that you're rushing through the process, or if they believe that you just don't care about them, they're not going to be interested or keen to settle the case. Or more importantly, or equally important, they're not going to be listening to you when you have those tough conversations later on in the day. So getting to know the parties is absolutely essential. And a key component to any successful mediation. And when you get to know the parties too, you talk to them about, look, if you want a break, if you smoke cigarettes, you want to go downstairs, don't hesitate.

49Whenever you want that break, please take it. And we're going to have a lunch break. And whenever you feel tired, if you want to go for a walk, please do. I have a practice that is one half Zoom and one half in person. I've done more than 125 in-person mediations. I think it's significantly higher than that since I retired. On May 1st, 2021, and I do the vast majority of my in-persons at 25 Sheppard Network North. I find in-persons to be very, very purgative for the clients, and in complex cases, almost essential, as opposed to Zoom. Now, Zoom is a fantastic medium. Teams is a fantastic medium. We were very fortunate that it got developed so quickly in the last 10 years.

50So for convenience, absolutely, Zoom and Teams is very, very effective. It saves you an hour and a half to drive to an in-person mediation. It allows the vulnerable parties to stay at home in the comfort of their homes, which is absolutely essential. For example, half my practice is tort. Personal injuries, people that are paraplegics that need to stay at home in the comfort of their home. Zoom is absolutely essential, whether you do it by hybrid as everybody else is in person and the plaintiffs are on screen, or the whole mediation is on Zoom. In the complex cases, in, in the very difficult cases, in the multi-party cases, consideration should be given to whether or not an in-person might be more effective than a Zoom.

51I like them both. They're both different tools, and you have to bring different approaches as a mediator to a Zoom medium than to an in-person medium. But they both can be very, very effective for sure. But they both have different advantages and different disadvantages, rather obviously. Thank you.

53So yeah, that's a great question. Mediation brief shouldn't be a mystery novel. The mediation brief needs to educate both the mediator but the opposing side. When you write that mediation brief, you're writing it largely for the opposing side. Hopefully they're going to read that. The client, if the client's an adjuster, for example, they will most assuredly read your brief, and that's who you're directing the brief to. So brevity is the soul of wit. Don't write the mediation brief at the last second, so it meanders, it jumps around, it's inconclusive, it's hysterical, it doesn't really adequately put your position on paper. So brief, a brief mediation brief is always better than a long-winded brief, but it takes a lot longer to write a short brief than it does a long brief, most assuredly.

54Number one. Number two, you always want to get the mediation brief to the opposing side about a week in advance. So they have time to read it. They have time to absorb it. So don't get ticked off and frustrated because you give it to them the day before. Don't do that. It's inadvisable. Get that brief to the mediator, to the opposing side, long in advance. Next, save your knockout punches for the courtroom. Save your inflammatory comments and park them for walking along the pathway on your, on your own. And if you want to yell into the night, do that. But inflammation, nonsense, demeaning, character assassinations have no place to play in a mediation brief.

55If you want to be destructive, that's what you'd want to do. If you want to be constructive, You never do character assassinations. You don't say, "The opposing client is a liar." That is a useless comment, inflammatory comment, and going to get you nowhere whatsoever, assuming the mediation proceeds at all. If it's a mandatory mediation, of course, we'll have to proceed, but the other side will have their backup against you right from the very beginning. What you can say in the alternatively 'At discovery, plaintiff said X, and to the police they said Y,' and leave it like that, and let the mediator draw his own conclusions as to the weight to be ascribed to that inconsistency.

56Don't then hammer the other side and say, 'And thus, that shows that the plaintiff is a liar.' We're advocates, and because we're advocates in an adversarial process, it's very difficult to write a mediator brief that's helpful, constructive, conciliatory, persuasive, and effective. This is not in our bones because we're in an adversary system and we were representing as advocates one side. You really got to take off your adversarial hat when you write that mediation brief and be conciliatory and be positive and explain your weaknesses And don't run away from your weaknesses. And you might say to me, and you're welcome to say, this is all tomfoolery, I don't agree with anything Archibald's saying. That's your prerogative.

57But if you want to be persuasive, and if you want to get this case settled, and you want the mediator to help you, write a brief that the mediator understands, resonates with a mediator, and the mediator goes, yeah, I really am going to help this side. I get their perspective. I understand the problem. And I'm ready to go. And the other side, when you write that brief, they go two things. They go, one, my gosh, that lawyer is really well prepared. Two, they've got a pretty good case. I didn't realize that. And three, they're being conciliatory and reaching out to me. And so they're not sort of trying to punch me metaphorically in the face.

58I kind of don't mind this. I'm prepared to engage with them. I want to see if we can constructively get this case settled. That's how you write an effective mediation brief. Think about your audience and think about persuading the audience to come to the table, stay at the table, and try to constructively settle the case.

60Well, there's lots of mediators in the province and lots of terrific mediators in this province, and the great thing is that lawyers have the opportunity of selecting one of many mediators. In terms of my practice, I do both commercial and tort, so I like the variety. And I even do employment law too, of course. And so I love the variety. In one given week, I might do a personal injury case, next day could be an employment law case, and the third day will be an oppression remedy case. So I love the versatility. And of course, the lawyers are always different depending upon the nature of the, of the case. If it's personal injury, it's a very different bar than a commercial bar.

61So I love the variety of the work.

631979, I was called to the bar, and when I clerked, it was clerked for the Supreme Court of Ontario, which is the old Superior Court of Justice Trial Division.

65I loved being an Assistant Crown Attorney. I was an Assistant Crown Attorney in Toronto from 1980 to 1989, and it was— I look back— an incomparable position. I did tons of jury trials. I was privileged to do a lot of murder cases as Crown counsel. The opportunity to advocate, the opportunity to learn how to be a good advocate. Being an assistant Crown attorney is an exemplary job. And you are a Minister of Justice, and you're helping society every day of the week in terms of your prosecutions, in terms of reaching settlements with defense counsel, in terms of your constant appearance in court. It's a wonderfully challenging and fantastic job being an Assistant Crown Attorney for the Province of Ontario, or for that matter, if you're working for the Department of Justice in Canada.

67Yeah, thank you for the question. I left the Crown's Office in 1989, and I had the wonderful opportunity to join the Municipality of Metropolitan Toronto as a senior solicitor. And at that point in time, my career had been exclusively criminal law. And when I went over to Metropolitan Toronto, I switched hats— it was 180 degrees— into the civil arena with personal injury cases. Commercial cases, administrative cases. It was a wonderful 180-degree turn, and it was an incredible privilege. The learning curve was very steep for me, that's for sure. And I was there for about 2 great, wonderful years learning those areas. And then my next stop was at Gardner Roberts, where I did civil and commercial litigation.

68And then lastly, I was a partner at Borden Ladner Gervais. And in my latter years, before I became a judge, I actually practiced in 3 areas. I still had my criminal law background, so about a third of my work was criminal, a third was insurance defense work, largely in the tort arena, personal injury arena, and the other third was commercial, commercial litigation. And those years at Borden and Elliott, it was called then, as opposed to Borden Ladner Gervais, were fantastic years. Very challenging, very fulfilling, very exciting, and I love the work. And then of course I had the privilege and great honor of becoming a judge in 1999.

70My interest in law— I grew up in the era of all the great crime shows and courtroom shows in the '60s. And of course, once you once watch the old Perry Mason reruns, or you see them first time, you go, aha, that's what I want to do. So I always wanted to be, ironically, a criminal lawyer, and thus I became an assistant Crown counsel in my early days as a Crown.

72I knew Eddie Greenspan quite well. Mr. Greenspan was a superb counsel, a great human being and an absolutely superb counsel. He was a forensic gem. His abilities were second to none.

74You're very welcome, Pulat. My privilege to be here. And it was a wonderful half hour with you. Thanks so much for inviting me on board.