Making courts and mediations accessible for people with disabilities. David Lepofsky, Chair, Accessibility for Ontarians with Disabilities Act Alliance. Delivered at the Osgoode Hall Law School, January 21st, 2014 as a Roy McMurtry Clinical Fellow. What I'd like to talk to you about, for a few minutes, is addressing the barriers that people with a mental or physical or sensory disability might face, in the mediation process.

So we're anticipating that there's, there's a a court order tribunal administered proceeding. They've decided to go to mediation to see if they can settle the problem. A mediator is appointed, and one or more of the participants in the proceeding has a physical, or mental, or sensory disability. It may be one of the clients, it may be one of their support people, or their spouses or friends if they're taking part.

or, of course, it could be the mediator themselves or arbitrator, or it could be the, the lawyer representing one of them. Primarily, though, I'm gonna focus on the parties. If it's a, a matrimonial thing, the spouses. They could face barriers in the mediation process, and we need a strategy to deal with them.

There's a good place to turn to get ideas about what those barriers are and how to fix them. Let me tell you about that place. Let me tell you a bit about what was learned, and then let me give you a few ideas of the kind of barriers that can come up.

And how they might be dealt with. In 2005, the Ontario Legislature, through the enactment of the Accessibility for Ontarians with Disabilities Act, committed the province to become fully accessible. At that time, the chief justice of Ontario was Roy McMurtry. I am now the, honored to be the Roy McMurtry Clinical Fellow at, at Osgoode Hall Law School for, during this term.

And so the coincidence of talking about what he did, to help out is delightful. Chief Justice McMurtry, was and is a visionary individual. And he announced in 2005, that he supported the government's plans to require Ontario to become fully accessible by 2025, and that the courts should do their part.

So the courts, too, have to become fully accessible. So Chief Justice McMurtry appointed a joint committee of the judiciary, the government, and the legal profession, to identify the barriers that now exist in the court system, and to offer an action plan on what to do about it. It was, conducted under the able leadership of its chair, Justice Karen Wilder, of the Interior Court of Appeal.

I was privileged to serve on that committee. We reached out to the legal profession, the government, and others, to figure out what kind of barriers took place and, and, and the final Weiler report identified them. And we also came up with a vision of what an accessible court would be like.

And we and the Weiler report identified that. And finally we offered an action plan of how to get from a court system full of barriers, to fully accessible court system. That document that resulted from the two years of work was called the Weiler Committee Report. Weiler's is weiler.

It's available in the court of appeal. And if anybody wants to see it, or they're watching this video, you just Google, Weiler report, disabilities in Ontario. Or go to the Ontario Court of Appeals website, and you'll see the report posted. And the report stands the test of time.

It got it right. And, one of the things it did was to ask a direc, propose that a permanent committee of the bench, the bar, and the government be set up to oversee its implementation. The courts and the government did that. That committee still exists. I serve on it, as well.

It's called The Ontario Courts Accessibility Committee. And through the, the work of the Weiler Committee from' 05 to' 07 and the work of the courts, Ontario Courts Accessibility Committee, from' 07 to the present, we've learned a lot. There's been a lot of progress. There of course is much still to be done.

One of the things that we learned, is that there are a number of recurring barriers, in the court system. And I'm not talking about barriers to getting a lawyer or justice barriers or inadequacies in the law. Those are all important issues, or inadequacy of legal aid coverage and so on.

I'm talking about a person's involved in a court proceedings as a client, a lawyer, a witness, a prospective juror, judge, court staff, whatever. They face a range of specific barriers. Let me summarize them, and then let's turn, see what we can draw on this for the mediation process.

First we found there are a lot of physical barriers. Some of our courts are old and they may have steps to get into them or a step to get into a jury box or a witness box. They may not have sufficient accessible uh,facilities throughout the building and so on.

We also found that there were communication barriers. Section 14 of the Canadian charter of rights and freedoms. Nobody reads section 14. Had to go from 13 not incriminating yourself right to 15 equality, and I, never look at it. But guarantees a right to an interpreter people involved in court proceedings.

If they're deaf or if they don't speak whatever official language is. Of course there is official language entitlement. And yet, because of sign language shortages and so on there are problems that people who are deaf, or who are deaf under the court of hard of hearing, getting access to appropriate interpretation supports.

People with vision loss, or dyslexia can face barriers in, in reading court forms. Or reading printed material that is used in court proceedings. People with intellectual disabilities, and some other kinds of disabilities find the language we use impenetrable. Of course, lay people with no disabilities find the language we use impenetrable.

For them, plain language wherever possible is critical. Interestingly, the whole direction in legal writing now, in for the public, for clients, is plain language. The extent the legal profession fails to live up to that. We're actually hurting everybody, but we're especially hurting folks with certain kinds of disabilities.

We also found, a range of other, kinds of barriers. I will, leave it to you to read the Weiler report to get more about that, but lemme talk about transposing this to pardon me. What, what did, what did the Wyler Report recommend? They recommend the government develop a series of strategies, to deal with this.

They suggest, proposed, the government has adopted this, that every court facility should have a disability accessibility, and a combination coordinator. One stop shopping to go if you need something fixed. They proposed that judges and lawyers need more training on this and there's been, an increase in training for judges and lawyers.

For example, the Law society I've had the privilege, I've really been honored to chair, two successful continuing legal education webinars by law We have a third one coming in May of 2014, to deal with these issues. The and there's training for judges on these kind of barriers too.

As well it was proposed that the government should put in place specific strategies to address recurring barriers, and should communicate the availability of these to the public. So now let me turn to the mediation process. The same barriers that come up in the court process, can come up in a mediation process.

Dealing with them may be in a sense administratively a little more challenging. Not because they're any harder to fix, but because the the mediation may be under a mediation, organization or a company. It may be under a government department. It may not be as, under the same kind of central control, as the interior government has.

The ministry of the attorney general has an entire division called The Court Services Division that can put in place, strategies to be available court wide. Her province wide to try to deal with some of these barriers. nevertheless, here is some practical suggestions. Number one. It should be built into any negotiation slash mediation or arbitration process.

From the beginning, that parties and other participants be solicited right up front. Does anyone have a disability, that requires an accommodation, so they can fully participate in the process? One thing we've learned through the court process, through implementing the Weiler committee, is that it's absolutely essential, that that question be put as early in the process as possible.

You don't wait for the first day of trial to walk in and say, I know it's an eight-week trial, but we need sign language interpretation every day. You're not going to get it. You are going to end up delaying the trial. The earlier the request is made, the easier it is to plan for it.

And participants in the mediation process, especially lay participants, will not know that they can ask. And they certainly won't know who to ask. Organizations that provide for mediation should have this inbuilt either in the forms they use, or in the online resources they have or whatever. But it's also important that anybody actually conducting the mediation should, as part of their introductory remarks or even the materials they send out before the mediation begins, identifying if there are any accessibility needs, and trying to connect people up with whomever they need to, to solve them.

Drawing on a court experience, let me give you just of a series of examples. If there's a person with vision loss, or dyslexia, who can't read printed materials, there are ways, many ways to translate printed materials into an accessible format. And you don't need to know Braille to do it.

Many of us use a computer, as I have sitting in front of me with a screen reader on it. Its software that will read the text on the screen. But if the material's sent to us in a format like pdf, we may not be able to read it.

It's important to ask the individual, can your computer, do you have a computer that can read these to you, can they read Word, do you need HTML. There's a number of formats that are easy to access like Word and HTML, and pdf's can be awful. There are some who claims pdf's can be accessible.

There are features you can turn on. They help with accessibility, but it's a, still a rear guard battle. It's better not to use that format, wherever possible. And frankly don't choose that format period when providing information to us. For some people with vision loss they have low vision and they need large print.

Can expand the information on the page, print it. Or there are people with low vision who have magnifying technology so they put the document under a camera and it comes up on the screen, substantially enlarged. All a matter of planning in advance. Some when it comes to people with hearing loss.

They fit into three categories, people who are deaf, ie born with no hearing. People who are deafened, ie people who had hearing and lost it. And people who are hard of hearing, people with some but not complete hearing. Depending on which you are, and even within those groups, people use different communication supports.

Some use sign language, and there's different sign language, there's American sign language for English speaking people. LSQ for French Canadian people, people in Canada who speak French and for some people they don't use sign language. Often deafened people, or hard of hearing. And they may prefer to have captioning.

Real time captioning. Same people who do some real time transcription can provide real time captioning. similarly, some people, use, lipreading. It's important to identify. You don't just say, oh, they're hard of hearing, they must read lips. It's important to canvas with the individual, which support works for them.

With any disability different people with the identical condition, will use different supports. There are people with other kinds of communication disabilities where they have difficulty processing or communicating, not due to hearing or vision. And there's a whole field called AAC or Augmented and Alternative Communication with professionals who can provide communication supports.

Obviously, physical barriers are an issue. You need to conduct a mediation, in a building that's fully accessible with washrooms that are fully accessible. That is accessible by accessible transit, or has accessible parking nearby. Don't assume that all exists, and don't assume it exists even if the building has signage saying accessible.

And even if it has signage, even if it's accurate. You gotta be careful cause somebody could pull up and find out that somebody shoveled a pile of snow right at the foot of the ramp. And therefore the accessible entrance isn't accessible at all. Yes these things really do happen.

People with intellectual disabilities may need support. And some other disabilities may need support. People may need plain language support assistance. People with different kinds of disabilities may have fatiguing conditions. Or do to medications they're taking, there might be times of the day that are better for them. That may involve working on scheduling arrangements to best accommodate their capacity to fully participate.

If you go to the Weiler report, you'll see other examples. I've just given a few cuz this is just a short presentation. But the best way to solve all of this is, as early as possible, to ask the individuals do you, to explain, here's what the process is like, are you gonna have any accommodation needs?

Please let us know, and let us know which accommodations, best meet your needs. The sooner you know that, the sooner you figure it out, the sooner it can get implemented. A high burden rests with lawyers. Lawyers aren't used to asking their clients about this. But it's important for any lawyer that's going to take place, take part in any court or mediation process or any litigation process, to find this out as soon as possible.

And in the court process it goes further because you need to know about the needs of witnesses, and others who may, you may be calling to testify. Let me conclude by saying that in the years I've spent training lawyers and judges, on the issue of accessibility to the courts.

I have been met with a unanimous tidal wave of support. The things that we often hear back are like this. I've never thought of this before, I didn't know this was going on. Thank you for letting us know and what else can we do? A judge or a mediator can't be expected to be an expert on all disabilities.

But, they can benefit by simply asking or having the lawyers do the kind of solicitation I've mentioned. To enable them to proceed and to ensure full participation, full inclusion.