Interview: Life after the Bench

Avagene’s one on one with the Honourable Justice Clifford Nelson, retired judge.

So, I have always been very interested in knowing just what judges do after they retire; can they simply walk away entirely from a life devoted to law? do they simply turn to golfing? What other stereotypical thoughts come to mind?

The impact judges continue to make in the spaces they occupy after the Bench will be surprising for some and enlightening for others.

Justice Nelson was more than happy to indulge a few questions from me via a “sit down through emails with me”.

I met Justice Nelson during my Mediation Internship program with Riverdale Mediation. When I realized I was placed on a file on which Justice Nelson would be the Mediator, I was about to get some of my questions answered but I did want to learn more.

 

Here is what we do know about Justice Nelson:

After practising family law in Toronto for 28 years, Justice Nelson was appointed to the Superior Court of Justice in Ontario where he specialized in family law for nineteen years. Justice Nelson holds a Bachelor of Arts (1995) from the University of Toronto and a law degree from Osgoode Hall. After law school, he first worked for the International Labour Office in Geneva, Switzerland.

 

Justice Nelson has lectured on family law extensively for judges, lawyers and community groups. He has been a board member on a local child protection and social service agency and is currently a part-time member of the Ontario Review Board which has jurisdiction over individuals who have been found by a court to be either unfit to stand trial or not criminally responsible on account of mental disorder. Justice Nelson has also audited a course on negotiation at Stanford University. He also served as President of the Toronto Lawyer’s Club for a term.

 

Here is what we do not know:

Why law?

I came from a family whose members had little opportunity to complete their education. Like many people after WW2, my parents had to concentrate on earning an income, in order to raise a family. Yet I knew that both my grandparents and parents valued education, seeing it as the key to success in life. I was never very good at maths and sciences, so that left Law – which was fine with me. Why? Because I had an interest in people.

 

What do you miss most about the Bench?

The first is the collegiality of my fellow Judges, and secondly, hearing able arguments on the law, delivered in a calm reasonable manner. While I preferred helping parties settle, there is also real satisfaction in having well-prepared lawyers assist a judge in coming to a determination. In a very real way, a well-handled case represents a team approach with all participants contributing in order to get to the right result.

 

Are there cases you have lost sleep over?

Certainly. I don’t know how one could deal with family issues, especially those cases involving children, and be able to leave those problems at the office at the end of the day. Sometimes this is easier to say than do. The key, for me, is not to become overwhelmed emotionally, so that I can maintain objectivity.

Some cases I heard were extraordinary in terms of what angry people will try to do to someone they once loved. The effects on their children can be devastating.

 

What brought you to mediation?

Conferencing was an aspect of judging that I enjoyed very much – far preferable to motions or trial work. It was constructive, not destructive. Mediation was a natural segue from judging. As well, the prospect of doing little after retirement, while still feeling vigorous, was not at all attractive.

 

What are the main similarities and differences between mediation and the role of a judge?

There are many similarities: skills in negotiating, mediating, and understanding people are used in conferencing. One key difference is that a judge can impose orders rather than obtain clients’ agreement. This makes good sense, given that the time allotted to a case conference is relatively short.

 

What has surprised you most about mediation?

The parties I saw in Court had, in the main, to be convinced of the need to mediate or negotiate their differences. The people I see in mediation rarely have to be convinced that the process is better for them than litigation. So, seeing that motivation in play during a mediation was a pleasant surprise. When there is a real desire to settle, it can be a pleasure to help others to problem-solve.

 

What is your mediation style?

This is probably a question YOU (Avagene) should answer, having sat in on one of my more difficult and less successful mediations! To describe it in technical terms though, I would say it is a real mix between being a neutral facilitator and a more evaluative participant. I was a judge – some parties expect me to have answers for them. I do have those answers, for many; therefore, a nudge in the right direction helps some parties move along.

 

What are three essential skills mediators should have? Why? 

Three essential skills:

1. Patience
2. Listening Skills
3. Some knowledge of the law, especially re: financial matters

 

I would add a fourth:

4. Creativity

These skills are obvious and self-explanatory.

 

Should mediation be mandatory for family law cases?

This one is easy! Family fights in Court are, for many, very destructive. The problem-solving process is cumbersome and, therefore, very expensive. Mediation can solve most matters before they spiral out of control. I have recently learned that a pilot project involving mediation/arbitration in the Court system, under the able guidance of Justice Ramona Wildman, will start in select locations. This is long overdue. The project will deal with less complex cases. I predict that most will be resolved by mediation and that arbitration will be unlikely.

 

Why is screening for power imbalances and domestic violence so important in mediation?

The simple answer is to try to level the negotiation field. If a successful mediation is the goal, that will not be achieved if the parties are negotiating from unequal positions of strength. There will be a result, but an unsatisfactory one for the overpowered party. If mediation is “to do no harm” then a mediator must try to find even-handed ways to protect the vulnerable party in the relationship [process-wise, that is]. Otherwise, the matter belongs in Court.

Domestic violence screening is a must. Lives [including yours] depend upon it.

 

Practical screening tips for new mediators

1. Use a good screening tool to help you assess the issue of domestic violence.
2. Speak on a confidential basis with your colleagues about difficult issues.
3. Attend educational seminars to keep up to date in an ever-changing world.

 

What is your best advice for mediators?

Keep doing the good work that you are doing. Your efforts, and those of new practitioners, will ensure that the main route to resolving family issues, some years from now, will be mediation, not litigation.

 

And just to show his human side, I decided to be brave and ask His Honour the following:

 

1. Sci fi or comedies?
2. Golf or football? I play neither [though I once did]; watch bits of both.

 

I should add that I do not think that liking football or hockey means very much in the context of mediation/litigation. Sometimes we rush to judge people far too quickly, based on limited information. My father was a successful boxer when he served in the Canadian Army. He was a very gentle man and well-liked. He would have made a good mediator.

 

3. Hockey or tennis?: I play neither [though I once did]; watch bits of both.
4. Jazz, rock, heavy metal or soul music? Jazz – from these choices. But I far prefer chamber music, classical music and opera as well as David Byrne’s rock music, to almost any other art form.

 

A big thanks to Justice Nelson for his insight, tips and overall willingness to share.