Audio file Barry Fisher recording.mp3 Transcript 00:00:00 Avi Charney As a matter of introduction, Barry Fisher, thank you so much for joining me. 00:00:03 Avi Charney I appreciate you being my guest on. 00:00:05 Avi Charney Speak to a lawyer. 00:00:06 Avi Charney Nice to speak to a fellow Ontario lawyer and mediator. 00:00:11 Avi Charney You have so much experience and I'm looking forward to getting into it. 00:00:14 Avi Charney You literally wrote the book on employment law. 00:00:17 Avi Charney I'm looking forward to discussing that the wrongful dismissal. 00:00:20 Avi Charney Database your mediation experience, but I start by asking to go back to even the late 70s. What prompted you to study law you were called to by 1979? 00:00:37 Barry Fisher Probably a couple things. 00:00:38 Barry Fisher First of all, I always liked arguing I I always enjoyed that when I was a kid. 00:00:43 Barry Fisher We used to have little mock trials I I loved Perry Mason. 00:00:46 Barry Fisher We watched Perry Mason so I always wanted to imitate him and I remember one day sitting in the McGill last year and I was a major in anthropology. 00:00:55 Barry Fisher And I realized there was no way I wanted to be an anthropologist going out into places where they didn't have toilets. 00:01:02 Barry Fisher And spending my life sitting on the ground talking to people that wasn't what my choice was. 00:01:09 Barry Fisher And I was under the mistaken impression. 00:01:12 Barry Fisher Living in Quebec, the eighty Hudson Olaton to go to law school, and second of all that had to be really, really smart. 00:01:20 Barry Fisher So when I got over those two burdens, that's why I decided. 00:01:23 Barry Fisher To go to law school and and loved. 00:01:25 Barry Fisher It frankly I finally found. 00:01:27 Barry Fisher Myself, I was not an anthropologist. 00:01:29 Avi Charney Nice and and back then. 00:01:32 Avi Charney I mean you you landed up. 00:01:34 Avi Charney Tell us about your articling and your first couple of jobs. 00:01:36 Avi Charney Were they always in employment law, 'cause you're the employment law guy? 00:01:40 Avi Charney These days you're right about employment law. 00:01:42 Avi Charney That's that's your thing. 00:01:43 Avi Charney So how did that develop? 00:01:45 Avi Charney Was that always employment law? 00:01:47 Avi Charney Or did you still? 00:01:47 Barry Fisher Now in law. 00:01:48 Barry Fisher School there was no employment law. 00:01:49 Barry Fisher There was labor law. 00:01:51 Barry Fisher I took one course I didn't specially like it at all. 00:01:54 Barry Fisher Who was poorly taught and it seemed boring as hell. 00:01:57 Barry Fisher I actually thought I was going to be a tax lawyer, so I article that. 00:02:01 Barry Fisher Stikeman Elliott. 00:02:02 Barry Fisher Which was then stuck daily or bartzen Bowman, one of the leading tax firms. 00:02:06 Avi Charney Right? 00:02:07 Barry Fisher And I I worked and I worked with Hubert Stypmann. 00:02:11 Barry Fisher The statement is like when Elliot but quickly discovered two things that I didn't want to spend my life helping rich people save money and BI wasn't smart enough. 00:02:22 Barry Fisher The IQ level of tax lawyers as well beyond me their EQ level may not be very high, but their IQ is well beyond me. 00:02:30 Barry Fisher So I started working with a, uh. 00:02:33 Barry Fisher Due to an associate earning growth that. 00:02:39 Barry Fisher And he was one of the first people to do employment law and I just felt I I could connect with the people they weren't bankers. 00:02:47 Barry Fisher They weren't rich people. 00:02:48 Barry Fisher They were average people like my parents and I got in early on the ground floor and liked it so. 00:02:54 Avi Charney Well, so I mean, employment law is a relatively new area of law. 00:03:00 Avi Charney Can you tell us? 00:03:01 Avi Charney First of all, what is employment law and and how did it develop? 00:03:05 Barry Fisher Well it it used when I started when I was called to the bar in 79 until sometime in the 80s it was actually called master and servant law. 00:03:14 Barry Fisher So if you went to the law library, you couldn't find anything under employment law. 00:03:18 Barry Fisher The leading text you know, like chessher on contracts or something with some British thing, but it was on master and servant. 00:03:26 Barry Fisher So in in Canada I would say it really took off around nine, started taking off around 1965, which is when the famous Bardahl versus global mail decision came out. 00:03:35 Barry Fisher Which was really. 00:03:36 Barry Fisher The first articulation in Canada, at least as to how to calculate reasonable notice. 00:03:42 Barry Fisher Uh, and employment law has many, many aspects to it now, especially now, but at its core it's still the right of an employee to receive termination and pay severance pay. 00:03:55 Barry Fisher I use these terms. 00:03:57 Barry Fisher Colloquially, upon termination, and that's really at the core of what most cases are about. 00:04:04 Avi Charney And there's a distinction between labor law and employment law. 00:04:07 Avi Charney What what's the difference there? 00:04:08 Avi Charney Yeah, if it's. 00:04:09 Barry Fisher People out labor. 00:04:11 Barry Fisher Laws, a term used in unionized environments. 00:04:14 Barry Fisher Employment law is the term used in non unionized environments. 00:04:18 Barry Fisher So there are crossover issues, like for instance human rights law applies in both jurisdiction in both areas, but there are very important distinctions so that that's what the term 2 terms. 00:04:30 Avi Charney No, so so I'm not an employment lawyer yet, at least, so I'm going to be asking maybe some basic questions, but also for the audience that may not. 00:04:38 Avi Charney No such things, I'm gonna. 00:04:40 Avi Charney I mean, I also ask some basic. 00:04:41 Barry Fisher I'm I'm used to getting dumb questions. 00:04:43 Barry Fisher That don't work where? 00:04:44 Right? 00:04:45 Avi Charney Fair enough so so some called employment lawyers or labor lawyers only specialize in the Union side of things or the non union side of things. 00:04:55 Avi Charney Why is that? 00:04:56 Avi Charney And again, what's the difference? 00:04:57 Avi Charney Is there an expertise difference or practically speaking? 00:05:00 Avi Charney Why do some lawyers? 00:05:01 Avi Charney Take on one and not the other. 00:05:04 Barry Fisher On the labor side, there's a very distinct differential like there are union side labor lawyers and management side labor lawyers, and never the twain shall meet. 00:05:14 Barry Fisher It's highly unusual. 00:05:16 Barry Fisher Certainly in Ontario, and they're very specialized bar to find anyone who would represent both unions and management in different situations. 00:05:24 Barry Fisher It started off probably ideological when I started in the 80s and would go to labor meetings. 00:05:32 Barry Fisher It was very clear who who was the Marxist and and who was the the ultra capitalist. 00:05:40 Barry Fisher It's way less philosophical now, but it is the distinction. 00:05:44 Barry Fisher Still exists in the in the labor environment in the employment environment. 00:05:49 Barry Fisher It's less so when I practiced as an employment lawyer, I was primarily plaintiff, but I also represented a number of defendants, and so it's more balanced in the. 00:06:01 Barry Fisher In the employment bar, the practical one of. 00:06:04 Barry Fisher The practical reasons. 00:06:05 Barry Fisher Is if you're going to do both. 00:06:06 Barry Fisher You're going to often have conflicts of interest. 00:06:09 Barry Fisher And and to be fair, employers, you know if if my my lawyer was representing my company on something, I'm not sure I'd be very happy to find out. 00:06:20 Barry Fisher He just won a big case. 00:06:22 Barry Fisher In this in the in the Superior Court where a plaintiff got 24 months or something like that. So there's a little bit of political attachments though. 00:06:31 Avi Charney Fair enough, so your your database wrongful dismissal database is hugely influential and somewhere to speak the benchmark. 00:06:40 Avi Charney The guide for lawyers trying to determine how much their employee clients are eligible for. 00:06:48 Avi Charney Can you talk us through how that came about and you know the implications? 00:06:53 Avi Charney The effect of such a database? 00:06:55 Barry Fisher Here in the early 80s when I was a very young lawyer and I would be dealing with older lawyers and we'd be figuring out the notice period, they'd say, well, it's a 12. 00:07:03 Barry Fisher Month guys or so. 00:07:04 Barry Fisher That's a nine month case. 00:07:06 Barry Fisher And I thought all these people are extremely thoughtful. 00:07:10 Barry Fisher And I want. 00:07:10 Barry Fisher To be like. 00:07:11 Barry Fisher Them so I started collecting. 00:07:13 Barry Fisher I started reading. 00:07:15 Barry Fisher All the cases I could and I started keeping track of them in a paper format with the bardal factors, the age, position, the years of service and when a new case came up I would literally flip through my little binder which maybe had 50 cases in it to try to find the cases that were closest to mine. 00:07:33 Barry Fisher I I kept on doing that and then I came early on I I came across a database program called dbase 3 Plus. 00:07:41 Barry Fisher I think it was which, and I'm not. 00:07:44 Barry Fisher I'm not computer illiterate, but I'm certainly not a a computer tech, but I learned how to work with dbase 3 Plus, which is a. 00:07:53 Barry Fisher A data program and I quickly realized I can have the computer doing the searching, so I started reading more and more cases. 00:08:02 Barry Fisher I hired my sister-in-law 1 summer. 00:08:04 Barry Fisher To go back. 00:08:06 Barry Fisher To 1965 and read every case now. Note this would be an impossible task now because everything is on canlii correct, but in. 00:08:15 Barry Fisher The olden days. 00:08:17 Barry Fisher Unreported cases were unknown cases, so the law was only made by reported decisions. 00:08:23 Barry Fisher So I had my sister in law on my side me. 00:08:25 Barry Fisher We went through all the previous cases. This would have been about 1982 or so and there was probably a couple 100 cases from bardahl forward. I put them all into this database. 00:08:36 Barry Fisher And I just started using it myself. 00:08:39 Barry Fisher And then I gave a speech to a group of lawyers about it and the the Law Society approached me. 00:08:47 Barry Fisher At that time, computerized research was done through a Law Society organization called the Search Law because computer research was very difficult. 00:08:57 Barry Fisher In those days. 00:08:59 Barry Fisher And I entered into a contract with search law where whereby they would lawyers would call up search law and say I have a 55 year old product manager with 12 year service. I would do this search. 00:09:12 Barry Fisher And they would go. 00:09:13 Barry Fisher Out and a couple years later. 00:09:15 Barry Fisher I sold that idea to Carswell's, who is still the publishers. I still do every single case, every every, every touch of the keyboard. Every case is is read and analyzed by me. Carswell is just the the publisher. 00:09:33 Avi Charney Well, there's there's so much to unpack there and and what you just said brought up so many questions for me. 00:09:40 Avi Charney I, I mean, maybe I'll start with why is there still litigation if the guidelines are so clear, why? 00:09:47 Avi Charney Why is there so much Gray area? 00:09:49 Avi Charney Wouldn't it be more beneficial for people to just plug it in and get that number and avoid all the litigation? 00:09:55 Avi Charney Is there too much Gray area in the law? 00:09:57 Avi Charney Too much room for a council to maneuver? 00:10:01 Avi Charney Around these things and get either more or less severance for their clients. 00:10:04 Avi Charney What's what's with the variations there? 00:10:08 Barry Fisher One of the reasons I started that. 00:10:10 Barry Fisher Space was the hope that if there was greater access to precedence over time, there would be less uncertainty as the notice periods, but there would be a common place where everyone would go. 00:10:23 Barry Fisher And if you've seen how my database works, I list all the cases that fit the criteria, but I clump them so that it. 00:10:30 Barry Fisher Basically it's a ball curve and I thought over time the parameters of that bell curve would shrink. 00:10:36 Barry Fisher Therefore the predictability of the notice period would would increase. 00:10:42 Barry Fisher I've written many papers doing an analysis of. 00:10:44 Barry Fisher But it has been somewhat successful in predicting notice periods for, say, people with 10 to 25 years. It's fairly easy to predict those. 00:10:55 Barry Fisher There's still a high level of unpredictability, especially for short service employees. 00:11:00 Barry Fisher Now, who's to blame for that? 00:11:02 Barry Fisher It's the judiciary. 00:11:04 Barry Fisher It's as simple as that. 00:11:05 Barry Fisher They're the ones that set the notice periods. 00:11:06 Barry Fisher They're the ones that keep on saying again and again and again. 00:11:10 Barry Fisher Every case is different. 00:11:11 Barry Fisher Well, I have a comment. 00:11:13 Barry Fisher Your honor. 00:11:14 Barry Fisher They're not different. 00:11:14 Barry Fisher OK, this is something that takes place hundreds of thousands of times a year. 00:11:20 Barry Fisher They're not very much of a difference or it should be a difference without a distinction. 00:11:25 Barry Fisher The model I hoped it would come to would be something like family support. 00:11:29 Barry Fisher Where yes, you can argue about the edges of it, but there's an understanding. 00:11:33 Barry Fisher In fact, it's statutory now. 00:11:35 Barry Fisher That there's a formula for it, so it's primarily the fact that judges just refuse, quite frankly, to follow precedent. 00:11:45 Barry Fisher Each each case they like to look at individually. 00:11:47 Barry Fisher Howard Levitt, one of my colleagues. 00:11:51 Barry Fisher He wrote a book years ago, and at that time he found a. 00:11:54 Barry Fisher 107 00:11:55 Barry Fisher Factors that affected the notice period. 00:11:58 Barry Fisher Well, there is nothing. 00:12:00 Barry Fisher That has 107 factors. That's called random, so it's probably being the greatest disappointment of my life. 00:12:08 Barry Fisher That it hasn't become. 00:12:10 Barry Fisher On the other hand, I keep on in business. 00:12:13 Barry Fisher They may well be a economic motivation among the entire bar that if we made this simple, why would they need us? 00:12:20 Barry Fisher I even wrote a paper on it about 10 years ago proposing a simple both statutory and common law way. 00:12:29 Barry Fisher Of of increasing certainty and the paper went nowhere. 00:12:34 Barry Fisher It probably wasn't read by anybody, so. 00:12:36 Avi Charney It would be interesting if it gets in the statute the Employment Standards Act like you mentioned with the family support, get some sort of schedule with very easy to determine. 00:12:46 Avi Charney That would make a lot of employment lawyers. 00:12:48 Barry Fisher Well, this proposal I had was I wanted to combine the ability to to to negotiate with a statutory thing. 00:12:57 Barry Fisher So the the idea I developed in this paper was that there would be a statutory notice period. 00:13:05 Barry Fisher There would be 3. 00:13:06 Barry Fisher It's a little complicated. 00:13:07 Barry Fisher There'd be the minimum. 00:13:08 Barry Fisher Levels under the Employment Standards Act, they would stay the same or whatever. 00:13:12 Barry Fisher Then there would be a standard formula, say a month, a year. 00:13:16 Barry Fisher For sake of argument. 00:13:18 Barry Fisher But there would be the ability under certain ways for the parties to contract out of the statutory minimum. 00:13:25 Barry Fisher Out of the step story standard, sorry. 00:13:28 Barry Fisher So this would. 00:13:29 Barry Fisher Combine certainty with flexibility. 00:13:32 Barry Fisher So if the if the parties wished to freely negotiate a greater. 00:13:37 Barry Fisher Benefit than the statute. 00:13:38 Barry Fisher They were free to do so. 00:13:40 Barry Fisher And if they negotiated a lesser benefit. 00:13:44 Barry Fisher Still above the floor of. 00:13:45 Barry Fisher The employment standards that could be. 00:13:46 Barry Fisher Committed and I developed this idea that you had to be Full disclosure so that you couldn't trick the employee. 00:13:52 Barry Fisher Basically would say the contract would have to say something like. 00:13:56 Barry Fisher These are the standard terms in the statute. 00:13:59 Barry Fisher We prefer to change. 00:14:00 Barry Fisher These things, do you agree? 00:14:02 Barry Fisher Because part of the problem with. 00:14:03 Barry Fisher Contracts is people don't know. 00:14:06 Barry Fisher Employers will argue well they freely entered into this contract. 00:14:09 Barry Fisher They can freely enter the. 00:14:10 Barry Fisher Contract, they don't know anything. 00:14:11 Barry Fisher The whole essence of a contract. 00:14:13 Barry Fisher Is meeting of the minds. 00:14:15 Barry Fisher If parties don't know what the. 00:14:17 Barry Fisher Standard is then how can they? 00:14:19 Barry Fisher How can you say? 00:14:20 Barry Fisher You freely negotiated away from that standard and trust me, 99.9% of employees. 00:14:26 Barry Fisher On hiring and, to be fair, probably 90. 00:14:27 Barry Fisher Percent of employers. 00:14:28 Barry Fisher On hiring have no clue what the log wrongful dismissal is, so this myth that negotiating their own settlement is is a myth. 00:14:37 Barry Fisher That continues to play out in employment law. 00:14:40 Avi Charney Yeah, and as far as I've seen, there have been some developments as of late with case law, and I had recently built 24. 00:14:47 Avi Charney I think just got introduced which has some effects, but let's get there afterwards. I want to just slow down the middle and say when you're in 82 when you're developing this database, will you still at stikeman or at that point you? 00:14:58 Avi Charney Went on your own or somewhere else. 00:14:59 Barry Fisher Aye aye. 00:15:02 Barry Fisher My career came to a quick ended statements. 00:15:04 Barry Fisher I was not at. 00:15:05 Barry Fisher It's back. 00:15:06 Avi Charney So you were on your own from the get. 00:15:08 Avi Charney Go pretty much. 00:15:08 Barry Fisher Well, now look the earlier event. 00:15:11 Barry Fisher The gentleman I told you about it was what I called the losers firm. 00:15:15 Barry Fisher Two of the associates. 00:15:16 Barry Fisher Were not made partners and I was not made an associate so we all left at the same time and started. 00:15:24 Barry Fisher I finished my articles actually at this new law for and then I became a. 00:15:29 Barry Fisher An associate at that law firm, and that's when I started doing primarily. 00:15:32 Barry Fisher By the law. 00:15:33 Avi Charney Well, very nice, only at a smallish firm like that. 00:15:37 Avi Charney You can have the flexibility and freedom to go and develop new things to innovate. 00:15:42 Barry Fisher Right, right? 00:15:43 Barry Fisher Well, yes, yes, and certainly on the plaintiff side segments when they did employment law. 00:15:47 Barry Fisher They were strictly employer counsel so. 00:15:51 Barry Fisher Well, I I often tell the story that the the three best things that ever happened to me were being rigid. 00:15:56 Barry Fisher Acted and one of the best rejections was not being asked back to state million. 00:16:02 Avi Charney Yeah, sometimes it just works out for the best. 00:16:04 Barry Fisher Definitely worked out for the best and later five years later when I was not made a partner by Mr Roo vet. 00:16:11 Barry Fisher I was then forced. 00:16:12 Barry Fisher To go out on my own are chosen on my own and that was the second best ad rejection that I ever got in my life. 00:16:19 Avi Charney Right, it's the benefit of hindsight. 00:16:21 Avi Charney Larry has, practically speaking, and now this affects, although is not only employment lawyers, but but anyone. 00:16:28 Avi Charney I want to know what's the best way you keep up to date on cases. 00:16:32 Avi Charney Are you just sitting like canlis your homepage or is there any better way to to get up to date and up to speed on all the relevant cases that come out? 00:16:40 Avi Charney Now you've got it. 00:16:41 Avi Charney A lot of experience updating the database. 00:16:43 Avi Charney How could any any on estates lawyer real estate lawyer any? 00:16:46 Avi Charney Lawyer, how do they? 00:16:47 Avi Charney The best way to keep on top of cases. 00:16:49 Barry Fisher The way I do it is not available to other people, so let me explain how I do it, but then I can also explain how easy it is to do because I work with cars, wells, Reuters, the largest legal publisher. 00:17:02 Barry Fisher I think in the world. 00:17:03 Barry Fisher Uhm, they have scores of people. 00:17:06 Barry Fisher Who read every. 00:17:06 Barry Fisher Decision of every court through the land, and they have people that sort them out according to topics. 00:17:13 Barry Fisher So every week I get 8 to 10. 00:17:16 Barry Fisher Cases directly from my publisher for me to review, so that's why I get. 00:17:20 Barry Fisher My primary work. 00:17:22 Barry Fisher Uhm, I spend too much time on LinkedIn scanning other people websites and they also encourage and and it. 00:17:30 Barry Fisher Luckily I did get it. 00:17:31 Barry Fisher A lot of lawyers with when they win a case they tend not to send me their losers when they win a case, they'll send it to me 'cause they know that Al. 00:17:39 Barry Fisher If it's relevant, I'll include in the database and more importantly. 00:17:42 Barry Fisher Blog about it. 00:17:44 Barry Fisher So I I have that now. 00:17:45 Barry Fisher If you don't have those access points, which most lawyers don't, the easy thing is to go on cannily and to set up a search you can. 00:17:52 Barry Fisher I haven't done it, my son. 00:17:53 Barry Fisher Does it an automatic function it? 00:17:56 Barry Fisher Sees as soon as it. 00:17:57 Barry Fisher Sees any case with the words. 00:17:59 Barry Fisher Wrongful dismissal. 00:18:00 Barry Fisher Reasonable notice you can. 00:18:01 Barry Fisher Key in whatever you want. 00:18:03 Barry Fisher You will get notification. 00:18:04 Barry Fisher For those cases. 00:18:05 Barry Fisher So with the electronic world, it's so much easier to stay up to date. 00:18:09 Barry Fisher And yeah, I just read a lot of cases every. 00:18:12 Barry Fisher Day almost. 00:18:14 Avi Charney Well, amazing. 00:18:15 Avi Charney And that's what keeps you up to date and informed informed of the law. 00:18:19 Avi Charney So so the the book you mentioned is interesting. The 80s sounds like an interesting time when you're just getting some experience and then I see from 1987 you're almost exclusively focused on mediation or arbitration ADR. You took the Harvard course. I actually took that course as well over the summer. 00:18:39 Avi Charney Really enjoyed it and you know want to develop in that. 00:18:42 Avi Charney ADR footsteps the mediation footsteps in one way or another, but 87 was really early in that in that sense it was. 00:18:50 Avi Charney I don't know if it was mandatory back then, but Even so it was very underdeveloped. 00:18:54 Avi Charney The mediation arena. 00:18:57 Avi Charney If you also. 00:18:58 Avi Charney Talk about how you got into that, how. 00:18:59 Avi Charney Did you get? 00:18:59 Avi Charney Into that exclusively even and. 00:19:01 Avi Charney Go through a bit of that. 00:19:04 Barry Fisher Well, I actually got into arbitration before I. 00:19:06 Barry Fisher Get into mediation so. 00:19:09 Barry Fisher As a laborer to become a labor arbitrator, you have to have experience in the area, but you also can't be partisan. 00:19:16 Barry Fisher So I was lucky enough that I did some labor law. 00:19:21 Barry Fisher And I appeared before a tribunal whose name I can't remember anymore in front of Owen Shine, who's still actually a very hardworking arbitrator. 00:19:30 Barry Fisher And I appeared before him and I guess I impressed him at the time he was the chair of what's called the grievance Settlement Board, which is the. 00:19:41 Barry Fisher Statutory arbitration panel or disputes within the unionized public service. 00:19:48 Barry Fisher A little known board, but very busy because there are many, many employees of the Ontario Public Service and many of them filed many grievances. 00:19:56 Barry Fisher So one day I happened to be over at his offices. 00:19:59 Barry Fisher And he saw me in the hallway and he said, hey Barry, yes Mr Shine, he's still Mr Shine to me, by the way. 00:20:05 Barry Fisher And and he said, how would you like to be a vice chair of the grievance settlement board? 00:20:11 Barry Fisher And I immediately said I would be honored. 00:20:13 Barry Fisher And then I ran back to my office and I said, what the hell? 00:20:16 Barry Fisher Is doing settlement pork? 00:20:18 Barry Fisher So I looked into it and discovered it was this arbitration panel. 00:20:22 Barry Fisher So, uhm, I was selected by he would put me forth as a nominee as nomination and I was accepted by both the employer and the major unions. 00:20:32 Barry Fisher And so I started doing arbitration. 00:20:34 Barry Fisher I still I am on that tribunal and the longest serving member of that tribunal. 00:20:40 Barry Fisher I've always been an impatient person. 00:20:43 Barry Fisher I like to get to the core of. 00:20:44 Barry Fisher The problem and. 00:20:45 Barry Fisher I like to resolve it and and I always liked interventionist judges when I did trials I couldn't stand the granite judge who just sat there day after day listening to my boring submissions giving me no sense of where he's going. 00:21:01 Barry Fisher I prefer to engage in a. 00:21:03 Barry Fisher Discussion, so I adopted very quickly that form of arbitration, which at the time was radical. 00:21:11 Barry Fisher Because you were. 00:21:11 Barry Fisher Expected to sit there like a granite stone and absorb all this information and then write it. 00:21:17 Barry Fisher I I rather engaged in a in what I call the conversation with counsel and more interventionist model. 00:21:25 Barry Fisher Well, that that led to the fact that lead over time to develop into something called Med ARB, which we didn't even have to turn back then, which was the arbitrator taking an active role. 00:21:37 Barry Fisher And trying to resolve the dispute. 00:21:39 Barry Fisher And and I found that that was more satisfying I. 00:21:42 Barry Fisher Was better at it. 00:21:44 Barry Fisher I didn't exactly like writing 40 paste decisions on constitutional issues. 00:21:49 Barry Fisher I I wanted to resolve the dispute. 00:21:52 Barry Fisher So that got me into so I was doing arbitration and mediation at at the same time in the same. 00:21:58 Barry Fisher Process and then. 00:22:00 Barry Fisher On the civil side, it didn't exist at all, quite frankly, so on the employment law there was no mediation at all. 00:22:08 Barry Fisher A pilot project brought in by the Ministry of the Attorney General in the I think the mid 90s. 00:22:16 Avi Charney Why would everything litigate at that point? 00:22:19 Barry Fisher Uhm, yes, but everything still litigates litigation is simply starting a claim. 00:22:25 Barry Fisher Look case is always resolved. 00:22:28 Barry Fisher OK, the number mediation is not the panacea to reduce all trials. 00:22:33 Barry Fisher Lawyers have settled cases probably since the 1st. 00:22:37 Barry Fisher Lawyers existed, it's just we did it in a different fashion. 00:22:40 Barry Fisher We would do it on the phone with each other. 00:22:42 Barry Fisher We do it at discoveries. 00:22:43 Barry Fisher We do it at the pre trial and we do it without the involvement of a third party. 00:22:49 Barry Fisher Mediation just changed all that so that it's easier to talk through a third party. 00:22:55 Barry Fisher But lawyers. 00:22:56 Barry Fisher Have always resolved cases, it's just. 00:23:00 Barry Fisher Mediations, a different method, arguably. 00:23:02 Barry Fisher Better, more efficient, and all that sort of. 00:23:04 Barry Fisher Stuff, so that's. 00:23:05 Barry Fisher How I got into mediation. 00:23:06 Barry Fisher I was, I was. 00:23:07 Barry Fisher Actually, in the beginning I thought mediation was for wimps only. 00:23:11 Barry Fisher Lousy lawyers needed mediation. 00:23:14 Barry Fisher And then I started. 00:23:15 Barry Fisher Attending mediations 'cause I had to. 00:23:17 And I loved it. 00:23:18 Barry Fisher And I was jealous of the person sitting at the end of the table, so I was lucky enough to there weren't many are between mediators in those days. 00:23:26 Barry Fisher But I was lucky enough to latch onto a few. 00:23:29 Barry Fisher I learned early on to choose a few mediators that you worked well with as opposed to using a different mediator every time. 00:23:37 Barry Fisher And I basically. 00:23:39 Barry Fisher Pump them from information I we mediate the case and then they take him out for drinks. 00:23:43 Barry Fisher And why did you do this? 00:23:44 Barry Fisher Why did you do that? 00:23:45 Barry Fisher Why did you do this? 00:23:45 Barry Fisher Why did you do that? 00:23:46 Barry Fisher Yeah, and and then I took a bunch of courses, Harvard course and the Washington course. 00:23:51 Barry Fisher And things like that. 00:23:53 Avi Charney Right? 00:23:53 Avi Charney So you're saying it moved away from arbitration? 00:23:55 Avi Charney And more towards. 00:23:56 Avi Charney Mediation these days. 00:23:57 Avi Charney A couple decades later, is it purely mediation or some? 00:24:00 Barry Fisher I know I've always I started off as as a lawyer. Then I was a lawyer and an arbitrator. Then I was a lawyer and arbitrator at a mediator, and then I was. And then in 2000 I dropped the law. 00:24:12 Barry Fisher The lawyering part, and so since 2000 I've been mediating and arbitrating. But mediation has always taken up the. 00:24:19 Barry Fisher Bulk of my time. 00:24:20 Avi Charney Right and then you know you don't just stop there. 00:24:23 Avi Charney As a mediator arbitrator, you. 00:24:24 Avi Charney Go ahead and write a book. 00:24:25 Avi Charney About it so. 00:24:27 Avi Charney When, when did that? 00:24:27 Barry Fisher I go, I don't well. 00:24:28 Avi Charney Come about. 00:24:29 Barry Fisher When people say I wrote up I. 00:24:30 Barry Fisher Did write a. 00:24:31 Barry Fisher Book on mediation. 00:24:32 Barry Fisher In employment law. 00:24:34 Barry Fisher It it was a vanity press. 00:24:36 Barry Fisher Quite frankly, a friend of mine said he would put it together and he did it. 00:24:40 Barry Fisher It's it's not my proudest achievement. 00:24:42 Barry Fisher Quite frankly, it's not generally available. 00:24:45 Barry Fisher One of these days, perhaps I'll sit down and rewrite it so when people say I wrote the book, they're usually referring to the database. 00:24:52 Avi Charney Right, right? 00:24:52 Barry Fisher I don't even knows about the. 00:24:54 Barry Fisher Book, it's really just a collection of various articles that. 00:24:57 Avi Charney Has it been helpful for your career for? 00:24:59 Avi Charney Anything or. 00:24:59 Barry Fisher No, no no. 00:25:00 Barry Fisher I sold 2 copies so it's not a big deal. 00:25:03 Avi Charney OK, very much. 00:25:04 I don't know. 00:25:04 Barry Fisher My parents no. 00:25:06 Barry Fisher It was it was. 00:25:07 Barry Fisher It was an. 00:25:08 Barry Fisher Experiment and I just haven't had. 00:25:11 Barry Fisher The time or the. 00:25:12 Barry Fisher Energy, or the effort to try to really get it properly edited and published. 00:25:16 Barry Fisher Maybe one day, if anybody out there wants. 00:25:19 Barry Fisher If some aspiring young lawyer wants to have his name as a coauthor, please give me a call and I would. 00:25:25 Barry Fisher I I hate. 00:25:28 Barry Fisher So I that's I goes back to my impatience. 00:25:32 Barry Fisher I don't have the time and the energy, and it's hard to edit yourself as you think what you wrote, sacred, right, right? 00:25:39 Barry Fisher So it's I need somebody else to sit down and say this is garbage. 00:25:42 Barry Fisher You should organize this this way. 00:25:44 Barry Fisher I just haven't had around. 00:25:45 Barry Fisher Got around to. 00:25:45 Barry Fisher Doing it so. 00:25:46 Avi Charney Amazing OK, fair enough. 00:25:47 Avi Charney Will put that out there. 00:25:48 Avi Charney Maybe you'll get contacted about. 00:25:50 Barry Fisher That's furiously, as a young lawyer who wants that I'll put his or her name right on the front. 00:25:55 Barry Fisher They have it first, I don't care. 00:25:57 Avi Charney Fair enough. 00:25:58 Barry Fisher Happen again. 00:25:59 Avi Charney So let's let's get into mediation a little bit. 00:26:02 Avi Charney I mean, employment law is an interesting one because there's a imbalance of power. 00:26:06 Avi Charney You got the big employer on the one hand, they got their rules and whatever, and then you got. 00:26:12 Avi Charney The weak employee. 00:26:13 Avi Charney So maybe go through. 00:26:16 Avi Charney Generally speaking, the skills of a good mediator, that's that's what I'm interested in like. 00:26:20 Avi Charney You used to pick their brains of those mediators you you attended with. 00:26:23 Avi Charney That's what we're trying to do here. 00:26:24 Avi Charney What really makes it succeed in mediation and and just follow up on that is do employment. 00:26:30 Avi Charney Law files generally settle in mediation or or you know what kind of percentage of success is there? 00:26:37 Barry Fisher About 80 to 85%. 00:26:39 Barry Fisher In my own personal. 00:26:42 Barry Fisher Other people are probably way less. 00:26:43 Barry Fisher But not kidding. 00:26:44 Barry Fisher Every mediator will tell you it's 8090%. The beauty of this is. 00:26:47 Barry Fisher That's all confidential. 00:26:48 Barry Fisher We could be walking through it. 00:26:50 Avi Charney Right? 00:26:51 Barry Fisher I generally speak. 00:26:52 Barry Fisher First of all, your comment about the large oppressive employer against the little innocent. 00:26:56 Barry Fisher Really, that definitely exists in many cases, but it's not complete. 00:27:00 Barry Fisher There are many, many small employers who the effect of 1 lawful dismissal case can be devastating to them, and we've really seen that during the during the pandemic. 00:27:12 Barry Fisher I've had many small employees listen. 00:27:13 Barry Fisher Employers have always cried wolf, right? 00:27:15 Barry Fisher There's never been a debtor. 00:27:17 Barry Fisher In Latin, there's never been a debtor in the history of mankind, who hasn't claimed on broke. 00:27:22 Barry Fisher I'm broke. 00:27:22 Barry Fisher I'm broke this time, it's true. 00:27:25 Barry Fisher So the one thing that's changed in the pandemic is many employers in suffering. 00:27:28 Barry Fisher So I just wanted to make that point a small employer being faced with four or five wrongful dismissal cases which may put the company under. 00:27:36 Barry Fisher There is probably more the victim than the four or five people who may have lost their jobs and found other jobs so, but generally speaking, you're correct if there's an imbalance of power, the. 00:27:46 Barry Fisher The beauty of the courts is the. 00:27:49 Barry Fisher If you got a good, you got a lawyer, knows what he's doing, knows how to handle the case correctly, it doesn't matter. 00:27:54 Barry Fisher Whether you're taking on ESO. 00:27:56 Barry Fisher IBM, Toyota, whatever. 00:27:59 Barry Fisher If the lawyer knows how to handle the case correctly, the little Goliath or the big Goliath can be defeated by the David, say, biblical reference. 00:28:10 Barry Fisher I would say that my. 00:28:12 Barry Fisher Right the the main tool that I bring a number. 00:28:16 Barry Fisher Of tools to. 00:28:16 Barry Fisher Mediation table and the first one is my knowledge of employment law and my. 00:28:21 Barry Fisher Willingness to use it. 00:28:24 Barry Fisher There there used to be a debate and there still is occasionally, in the mediation server, in the mediation community as to whether or not a valuative mediation is appropriate. 00:28:34 Barry Fisher When I took my courses back in. 00:28:36 Barry Fisher The 80s that was. 00:28:38 Barry Fisher God forbid the mediator should inject his or her opinion. 00:28:42 Barry Fisher Into the case. 00:28:43 Barry Fisher You're just there as a communicator and all. 00:28:45 Barry Fisher This stuff I. 00:28:46 Barry Fisher Realized that was not going to. 00:28:47 Barry Fisher Work, so I'm a highly evaluative mediator. 00:28:50 Barry Fisher In other words, I rely on people people hire me because in part they want me to express my opinion as to how I think this might play out in court. 00:29:02 Barry Fisher So that's the first component of it. 00:29:05 Barry Fisher And I have various techniques in doing that. 00:29:08 Barry Fisher Employment law is off. 00:29:10 Barry Fisher Employment litigation is often like what I call like. 00:29:13 Barry Fisher I call. 00:29:13 Barry Fisher It an onion. 00:29:14 Barry Fisher In an onion. 00:29:15 Barry Fisher You've got a bunch of layers of crap on the top which you have to peel off before you find the good. 00:29:21 Barry Fisher The core right employment is similar. 00:29:24 Barry Fisher You take a straightforward. 00:29:26 Barry Fisher Notice case at the plaintiff starts off by saying, well, I should get punitive damages and aggravated damages, mental distress, and then the employer says, Oh yeah, well, I really fired you for cause and I have a counterclaim. 00:29:40 Barry Fisher You have all this garbage added on to the litigation. 00:29:44 Barry Fisher So then it. 00:29:44 Barry Fisher Comes to me. 00:29:46 Barry Fisher And what I try to do is peel away the garbage. 00:29:50 Barry Fisher OK, there's no really punitive damage claim. 00:29:52 Barry Fisher Let's not waste our time talking about that. 00:29:53 Barry Fisher There's no concept. 00:29:54 Barry Fisher Of near cause so I don't care whether he was a good employee or not and focus on what the case is really about. 00:30:01 Barry Fisher So depending on how much crap the lawyers have piled on, I may spend some time getting rid of that. 00:30:09 Barry Fisher Or whatever, or find out. 00:30:11 Barry Fisher That they really care about. 00:30:12 Barry Fisher That one issue, so that that's important. 00:30:14 Barry Fisher The other thing I think I bring to the table is is a good understanding of what motivates people. 00:30:22 Barry Fisher Uh, and my biggest regret about university is I should have taken less anthropology courses and more psychology courses if I had. 00:30:31 Barry Fisher My life to. 00:30:32 Barry Fisher Live over again, which I have no intention of doing. 00:30:35 Barry Fisher 'cause I'm not a religious person. 00:30:37 Barry Fisher I I would have taken away I would have. 00:30:39 Barry Fisher Majored in psychology, it is. 00:30:42 Barry Fisher Probably the more and and I spend a lot of my. 00:30:44 Barry Fisher Right? 00:30:45 Barry Fisher Spare time I'm not reading Tom Clancy novels. 00:30:49 Barry Fisher Reading about psychology especially. 00:30:52 Barry Fisher Economic, the psychology of economics. 00:30:55 Barry Fisher How people make decisions. 00:30:57 Barry Fisher That's very important. 00:30:58 Barry Fisher So I study. 00:30:59 Barry Fisher I focus on that too. 00:31:01 Barry Fisher What sort of person do I have? 00:31:02 Barry Fisher Here do they? 00:31:04 Barry Fisher What do they really? 00:31:04 Barry Fisher Care about what other interests to use, the term in psychological term. 00:31:09 Barry Fisher Uh, immediately? 00:31:10 Avi Charney I'm also a big fan of psychology. 00:31:13 Avi Charney Daniel Kahneman book kind of make decisions such things, uh, a more junior lawyer without the more practical chops that you have knowing what's going to. 00:31:24 Avi Charney Be with the court. 00:31:24 Avi Charney First of all, I always tell clients you never know what a court is going to decide. 00:31:27 Avi Charney So it's interesting that you're going to come and say it. 00:31:29 Barry Fisher I can't say that I I. 00:31:31 Barry Fisher I really don't like that statement. 00:31:33 Barry Fisher I think that makes, it's I've heard lawyers say that all the time. 00:31:36 Barry Fisher It's a dark. 00:31:37 Barry Fisher It's a if it really is throwing darts at a board or dice well, then let's just call it that. 00:31:42 Barry Fisher It's not, I can't. 00:31:44 Barry Fisher If I actually believe that, then I'd give up. 00:31:47 Barry Fisher There is a logic to it. 00:31:49 Barry Fisher You can't predict exactly, but you can talk about reasonable ranges. 00:31:54 Barry Fisher So what I try to do in my mediation in the beginning is to get people agree on what the likely range of outcome is, not the extremes. 00:32:02 Barry Fisher Again, we're back to that Bell curve, right? 00:32:04 Barry Fisher Yeah, did you read the book Black Swan? 00:32:06 Barry Fisher I send out the name I can't remember. 00:32:08 Barry Fisher Yeah, the Swans exist, but not in the real world. 00:32:12 Barry Fisher So I try to focus people on what the most likely outcome is. 00:32:15 Barry Fisher That middle range, right? 00:32:17 Barry Fisher So, statements like oh, you get, you know, judges do whatever they want. 00:32:20 Barry Fisher I don't think that helps people then why should I say? 00:32:22 Barry Fisher Well, why should I settle if? 00:32:24 Barry Fisher This person is telling me. 00:32:25 Barry Fisher That it's a crapshoot. 00:32:26 Barry Fisher I might as well go on a crapshoot. 00:32:28 Barry Fisher So I try to say no. 00:32:29 Barry Fisher I said, but you know, some things are more predictable than others. 00:32:34 Barry Fisher There's a slight chance this swan might happen, but the overall tendency is it's not that so I could take it back to the database. 00:32:42 Barry Fisher The database. 00:32:42 Barry Fisher Doesn't tell you what the answer is. 00:32:44 Barry Fisher It tells you what the more likely or most likely outcome is, and that's really. 00:32:50 Barry Fisher All we're ever trying to do. 00:32:51 Barry Fisher As lawyers this is. 00:32:51 Right? 00:32:52 Barry Fisher The most likely outcome or that outcome that you desire is least likely OK. 00:32:59 Avi Charney Fair enough. 00:33:00 Barry Fisher People have a terror, but the other thing I read about in in not just behavioral economics, it's people. 00:33:09 Barry Fisher Ability or inability to assess risk. 00:33:13 Barry Fisher We are terrible risk assessors and you can see that. 00:33:16 Barry Fisher During this pandemic. 00:33:17 Barry Fisher Stuff you know don't get me started on reactive actions, but. 00:33:21 Barry Fisher That people ability to overemphasize extreme. 00:33:26 Barry Fisher Risks and underestimate. 00:33:30 Barry Fisher Common risks is well known in the literature and that helps too, so. 00:33:35 Avi Charney Yeah, I I want to get there. 00:33:37 Avi Charney The whole vaccine employment law stuff in a minute. 00:33:40 Avi Charney But before we go there, I just want to follow up on this about psychology and say if you have a, uh, a psychologist who doesn't have much legal experience and a very knowledgeable employment lawyer without much understanding of human nature, who would be a better mediator? 00:33:55 Avi Charney You take the Nobel Prize winner Daniel Kahneman, a famous psychologist, and you put him in a mediation room. 00:34:01 Avi Charney Would he do better than a lawyer without that understanding of people? 00:34:08 Barry Fisher You can get a person with both skills. 00:34:11 Avi Charney Fair, fair enough. 00:34:13 Barry Fisher That used to be the age old debate. 00:34:15 Barry Fisher In mediation. 00:34:15 Barry Fisher Do you want somebody who understands the process of mediation, or do you want somebody who understands the legal analysis and the answer is I? 00:34:24 Barry Fisher Want someone who knows both? 00:34:25 Avi Charney Fair enough and we have to develop both both skills as lawyers mediators. 00:34:29 Avi Charney As you know you can't have one without. 00:34:30 Avi Charney The other yeah. 00:34:31 Barry Fisher The law is essentially, you know, maybe not tax law, but most law is human behavior and human understanding. 00:34:39 Barry Fisher Both the parties and the judges. 00:34:41 Barry Fisher You know, good advocates know that. 00:34:43 Barry Fisher Tell the story. 00:34:44 Barry Fisher Make your client sound sympathetic, even if he's the worst piece of crap on the face of the earth. 00:34:49 Barry Fisher Yeah, so all that plays into a mediation. 00:34:53 Avi Charney Fair enough, so I mean this last couple of years already has brought so many changes to our life. 00:35:01 Avi Charney One is remote work, we're doing this remotely whereas a couple years ago would have been great to do in. 00:35:06 Avi Charney Person employment relationships are mostly remote people. 00:35:10 Avi Charney Hire people without even meeting them, and they do their work remotely. 00:35:13 Avi Charney What kind of impact does that have? 00:35:15 Barry Fisher People have been hired and fired without hurting your value. 00:35:18 Avi Charney Hired and fired, I guess fired is the more interesting part for you, but. 00:35:22 Barry Fisher There's that nut bar in this US who fired 900. 00:35:26 Barry Fisher People on soon did you read about that one? 00:35:27 Barry Fisher The other day. 00:35:28 Right? 00:35:28 Avi Charney I don't no no so so talk to us about the implications of of remote or virtual, what kind of so even last week there was an article in the paper how someone fell down their stairs at home and received compensation. 00:35:40 Avi Charney So go through the the limit the bell curve of remote working if you. 00:35:45 Barry Fisher Well, from the mediation, let me start off with from the mediation point. 00:35:49 Barry Fisher Of view from. 00:35:49 Barry Fisher Mediation point of view. 00:35:51 Barry Fisher Zoom has been fantastic. 00:35:53 Barry Fisher If somebody would have told me on March 15th, 2020, but I'd be spending. 00:35:57 Barry Fisher My that I would. 00:35:58 Barry Fisher Never have to drive downtown to Toronto and through the traffic and and and and and then I. 00:36:05 Barry Fisher Could do a mediation. 00:36:06 Barry Fisher On on the computer, I'd say they were crazy. 00:36:09 Barry Fisher But the world has completely changed and I don't think it's going to go back. 00:36:12 Barry Fisher It is being a boom for for mediators. 00:36:14 Barry Fisher Quite frankly, I now have a Ontario dominant practice by all means, but I have a I'm starting to have a national practice now I I get, I get retained by Alberta Council. 00:36:28 Barry Fisher By British Columbia British Columbia. 00:36:32 Barry Fisher Uhm so geography becomes irrelevant to the practice of mediation and mediators. 00:36:40 Barry Fisher Have we very quickly understood that? 00:36:43 Barry Fisher Not only we're not spending time getting up, you know five in the morning so you can catch a flight to Sudbury for the day. 00:36:50 Barry Fisher We just now wake up at. 00:36:51 Barry Fisher 9:30 so we can do a mediation in Sudbury. 00:36:54 Barry Fisher At 2:00 00:36:57 Barry Fisher It has, as I said, expanded everybody practice so that geography doesn't matter, no longer. 00:37:02 Barry Fisher It used to be when you're choosing a mediator. 00:37:04 Barry Fisher If you were in Ottawa, you'd have a list of Ottawa mediators. 00:37:07 Barry Fisher If you were in winds, eat up a list. 00:37:08 Barry Fisher Of Windsor mediators. 00:37:10 Barry Fisher Now it doesn't matter, you just choose. 00:37:11 Barry Fisher The mediator that's. 00:37:12 Barry Fisher The best for your case, and it doesn't matter where he or she is sitting, and that's being remarkable. 00:37:17 Barry Fisher The ability to get decision makers to the table is being a traumatic difference too. 00:37:22 Barry Fisher Typically what would happen is very few companies in Canada are controlled by Canadians. 00:37:27 Barry Fisher We all know that we have our American friends and our Swiss friends and Chinese friends and our Japanese and they would. 00:37:35 Barry Fisher I'm not going to. 00:37:36 Barry Fisher Get a vice president in Texas to fly up to Toronto for a $50,000. 00:37:42 Barry Fisher Case that's never going to happen. 00:37:43 Barry Fisher He's going to send some Canadian HR partner with absolutely no ability to do anything as a spokesperson now that Texas Vice president can be on the phone. 00:37:56 Barry Fisher Because he, he or she will attend the mediation. 00:37:59 Barry Fisher So that's been a huge difference is no longer the excuse that it can't get hold of. 00:38:04 Barry Fisher The boss is the boss can join, so now it's routine too. 00:38:09 Barry Fisher I had a case the other day where one of the lawyers was in the Caymans. 00:38:13 Barry Fisher The client was in Toronto. 00:38:16 Barry Fisher I think the employer was in Switzerland. 00:38:18 Barry Fisher Or something like that. 00:38:19 Barry Fisher It's it's been a sea change. 00:38:21 Barry Fisher The only thing you have to adjust to is the timing issue. 00:38:24 Barry Fisher So you have to sort of compromise. 00:38:26 Barry Fisher So when I do a case out West, I can't expect them to get up at 8:00 in the morning, so their morning case is. 00:38:32 Barry Fisher My afternoon case, that sort of stuff. 00:38:35 Avi Charney So it's have been amazing. 00:38:36 Avi Charney It can be anywhere and continue with the. 00:38:38 Avi Charney With the work I'd I'd expect you to be on a beach. 00:38:41 Avi Charney If that's the case somewhere with the. 00:38:42 Barry Fisher Oh, I'm at my cottage. 00:38:44 Avi Charney There you go nice. 00:38:45 Barry Fisher So I I work. 00:38:46 Barry Fisher Between my cottage up in Muskoka and and my Toronto office. 00:38:51 Barry Fisher So someone said to me the other day. 00:38:53 Barry Fisher Are you at home or at the office? 00:38:55 Barry Fisher They said yes. 00:38:58 Avi Charney Very nice. That's right miss. 00:38:59 Barry Fisher I I always I love you like this. 00:39:01 Barry Fisher I say these are the only shoes. 00:39:03 Barry Fisher Worn over the last two years. 00:39:05 Avi Charney It's amazing, it's incredible how we can continue to be productive, successful these things while sitting at home. 00:39:12 Barry Fisher I mean, I do miss a little bit the quote personal side, but not the personal. 00:39:17 Barry Fisher Side of the media. 00:39:19 Barry Fisher I missed the having a drink with. 00:39:21 Barry Fisher A lawyer afterwards or something. 00:39:22 Barry Fisher But quite frankly, that's not worth having an office and driving downtown for right to meet with people. 00:39:28 Barry Fisher But there was this conversation at the beginning. 00:39:30 Barry Fisher You're gonna miss all this personal stuff, that's. 00:39:33 Avi Charney Not true at. 00:39:33 Barry Fisher All you and I are much closer now than we would be if. 00:39:38 Barry Fisher It was in a boardroom. 00:39:40 Barry Fisher Typically, if I was in a boardroom, I would be at. 00:39:43 Barry Fisher One end and the daddy seat as I. 00:39:44 Barry Fisher Call it, the lawyers would be the next seats and the clients would be sitting farther away. 00:39:50 Barry Fisher I have less ability to see the client there than I would onto on zoom. 00:39:56 Barry Fisher I can see I can. 00:39:57 Barry Fisher I can zoom right in. 00:39:59 Barry Fisher The other thing about zoom is. 00:40:01 Barry Fisher I'm seeing everybody's reaction at the same time. If you're in a board, me if you're in a board room and someone is talking to you, have to be looking at them. 00:40:08 Barry Fisher If you started looking away, that would be very impolite, so therefore I'm not seeing the reaction of other people. 00:40:15 Barry Fisher But on zoom I can. 00:40:16 Barry Fisher Look at everybody at the same. 00:40:17 Barry Fisher Time, so if you're the. 00:40:19 Barry Fisher Lawyer and you say something like stupid. 00:40:22 Barry Fisher I can see the clients reaction, and that's the sort of subtleties that a mediator looks for, and the other thing is. 00:40:30 Barry Fisher I'm seeing myself. 00:40:33 Barry Fisher And I'm able to. 00:40:36 Barry Fisher Manipulate my feet, my face, my feelings more 'cause I see what you're seeing which you completely lose in it in a boardroom meeting, right? 00:40:44 Barry Fisher I don't. 00:40:44 Barry Fisher Know what I look like? 00:40:47 Avi Charney Fair enough. 00:40:47 Barry Fisher Error myself all day. 00:40:49 Avi Charney Yeah, so it's it's nice to hear that there's a. 00:40:52 Avi Charney There's the the future is bright. 00:40:54 Barry Fisher I've done. 00:40:55 Barry Fisher Right and and I'm a Member of this International Academy of Mediators, which is. 00:41:02 Barry Fisher An International Association of commercial mediators, and we've done surveys and stuff and everybody loves it. 00:41:09 Barry Fisher Everybody like they only you know. 00:41:11 Barry Fisher Occasionally you'll get some client who says, well, I want to do a face to face, and when you ask them why they really don't even. 00:41:17 Barry Fisher Have an articulation. 00:41:18 Barry Fisher Anymore I I just don't see us. 00:41:21 Barry Fisher Going back. 00:41:22 Barry Fisher I call it going backwards. 00:41:23 Barry Fisher I'll do it once this pandemic. 00:41:25 Barry Fisher Is over if people want want to do it. 00:41:27 I'll do it. 00:41:27 Barry Fisher But I just don't think it'll matter anymore. 00:41:31 Avi Charney So it's a great time to be a lawyer. 00:41:33 Avi Charney Become a lawyer. 00:41:34 Avi Charney Very accessible, you know it's scars, the limit. 00:41:37 Avi Charney What we can do. 00:41:38 Barry Fisher Well, you know it's funny about that. 00:41:39 Barry Fisher I thought about first of all, whether this would help young mediators or hurt them. 00:41:45 Barry Fisher On the one hand they have access. 00:41:47 Barry Fisher To to the same platform that I have on the other hand, it does favor the established. 00:41:54 Avi Charney Right? 00:41:54 Barry Fisher A person, so it might actually be harder to break into mediation. 00:41:59 Barry Fisher Because in the olden days. 00:42:01 Barry Fisher Prior to March 20th, 2020. 00:42:03 Barry Fisher Uhm, there's no way I would do a mediation in Thunder Bay fits on or off special case. 00:42:09 Barry Fisher The the financial impact, which is ridiculous. 00:42:12 Barry Fisher So there would be an opening for a local Thunder Bay lawyer to become a mediator. 00:42:18 Barry Fisher Well now that's illuminated now. 00:42:19 Barry Fisher There's no, he's he or she's got no advantage over me, so it might have a. 00:42:25 Barry Fisher It might have a negative effect on accessibility in the sense that it might just favor the incumbent, yeah? 00:42:33 Avi Charney Yeah, I I like how it equals the playing field. 00:42:36 Avi Charney Everyone is equal and if you're good you'll succeed. 00:42:38 Avi Charney But no matter. 00:42:38 Avi Charney What it's? 00:42:40 Barry Fisher Kind of like it's kind of. 00:42:41 Barry Fisher Like when law when law libraries went electronic right? 00:42:46 Barry Fisher You know, a lawyer, a single lawyer in Kenora, as the same access to information that somebody at McCarthy does. 00:42:51 Avi Charney Right, yeah, that's really beautiful. 00:42:54 Avi Charney You know, can you talk about a some substantive developments in employment law? 00:42:59 Avi Charney I mean, I, I know you. 00:43:00 Avi Charney We say it's a new area altogether, but in the past decade or So what what is specifically changed? 00:43:05 Avi Charney I know recently the the Wakestyle case, I think, and there's severance and the whole contract whether it's valid or not, talk about the hot topics. 00:43:13 Avi Charney Of the past few years in employment law. 00:43:16 Avi Charney If you will. 00:43:17 Barry Fisher Well, the the issue of enforceability of what are called employment standards contracts. 00:43:22 Barry Fisher The Employment Standards Act sets a floor for. 00:43:27 Barry Fisher Various aspects of employment being hours of work. 00:43:31 Barry Fisher Uh or hourly rates and termination and severance pay. Ontario's laws are are more complicated than any other jurisdiction because we have different we have termination pay, we have severance, pay it, it's just it's complicated. 00:43:52 Barry Fisher Uh, many employers when they draft employment contracts, wish to limit their liability to the minimums under the employment standards that I'd say it's a very very common approach. 00:44:04 Barry Fisher Uhm, however it is not that easy to do because there are many little quirks in the Employment Standards Act. 00:44:13 Barry Fisher So what the cases have talked about Wax Dale being a certain major one, but. 00:44:18 Barry Fisher Wax sale flowed from a number of other Court of Appeal decisions. 00:44:23 Barry Fisher Was that you can. 00:44:25 Barry Fisher There was a case called Machtinger. 00:44:27 Barry Fisher Way back I don't. 00:44:28 Barry Fisher Know the 80s, the 70s maybe? 00:44:30 Barry Fisher Well, probably like. 00:44:31 Barry Fisher The 80s Howard Levitt was the plaintiffs counsel in that one. 00:44:37 Barry Fisher It stood for the proposition. 00:44:39 Barry Fisher In that you can't. 00:44:41 Barry Fisher An employer can limit their liability. 00:44:44 Barry Fisher To the minimum provisions of the employment standards. 00:44:46 Barry Fisher Act that was. 00:44:47 Barry Fisher One provision, but if it if the provision in any way greets the act, then the whole the whole termination clause was null and void. 00:44:59 Barry Fisher Up and up until. 00:45:00 Barry Fisher That point in time there was this debt. 00:45:02 Barry Fisher Date and I remember giving a speech to a Superior Court judges in New Brunswick about in the 80s on this as to whether or not having declared a provision in a contract illegal and therefore null and void, whether the judge could still look at it to determine what the intention. 00:45:20 Barry Fisher Of the parties was. 00:45:22 Barry Fisher Which struck me always is bizarre and Machtinger said no no no. 00:45:27 Barry Fisher Once a contract provision is null and void, it's null and void. 00:45:31 Barry Fisher You can't look back and say, well, they really intended that you get crappy notice period. 00:45:36 Barry Fisher So that was the foundation of it. And then lawyers had spent the last 25 years again, especially in Ontario. 00:45:45 Barry Fisher Attacking termination clauses because they. 00:45:50 Barry Fisher Just because they offend, they breached or could breach the Employment Standards Act, and they're very, very creative. 00:45:58 Barry Fisher About it 00:45:59 Barry Fisher So there I once started doing a list of all the ways to attack an employment contract, and in fact I still do it when I get one of those cases in. 00:46:07 Barry Fisher I don't read the plainest brief or the defense brief. 00:46:10 Barry Fisher I read the clause myself and I try to tick off all the problem areas and then I compare it to how many of those things the plaintiff found or the defendant. 00:46:20 Barry Fisher Well, the defendant never finds any of this defense. 00:46:22 Barry Fisher Them any event. 00:46:25 Barry Fisher So there are many, many ways you know. 00:46:26 Barry Fisher Did they cover benefits? 00:46:27 Barry Fisher Did they? 00:46:28 Barry Fisher Did they purport to? 00:46:31 Barry Fisher There's one leading case, it says. 00:46:34 Barry Fisher You don't look at whether it was a breach of the ACT at the time of termination. 00:46:38 Barry Fisher You look at whether it could ever be a breach of the ACT and you have to have a very intricate understanding of the Employment Standards Act to understand all its little quirks. 00:46:49 Barry Fisher So one of the. 00:46:50 Barry Fisher Trends over the last. 00:46:52 Barry Fisher 10 years last. 00:46:53 Barry Fisher Five years has been attacking employment contracts and getting them thrown out. 00:47:00 Barry Fisher That's been a huge let's. 00:47:01 Avi Charney And then the common law applies, and the common law. 00:47:03 Avi Charney Offers more stimulus. 00:47:05 Barry Fisher Alright, so or you got weird situations. 00:47:07 Barry Fisher The weirdest situations you have. 00:47:12 Barry Fisher If you have a. 00:47:12 Barry Fisher Fixed term contract. 00:47:14 Barry Fisher Most people have a contract at what's called an indefinite term. 00:47:17 Barry Fisher I hire you. 00:47:18 Barry Fisher We don't talk about termination, there is. 00:47:20 Barry Fisher No end date. 00:47:22 Barry Fisher Either because people actually want an end date, or more significantly, because some corporate lawyer drafted the employment contract. 00:47:30 Barry Fisher Then they love to have beginning and end. 00:47:32 Barry Fisher So they create a term which is not really so if you have a fixed term, say you have a two year fixed term contract. 00:47:39 Barry Fisher I hire you January 1st, 2022 and and ending December 31st, 2024. I guess if that's all it says and it's found to be a fixed term contract. 00:47:52 Barry Fisher Then if I terminated you one month into the contract, I would owe you 23 months pay without any duty to mitigate the damage. 00:48:04 Barry Fisher So now employers who draft fixed term contracts will don't want that to happen, so they then insert a termination clause that says, you know this is a two year contract subject to termination earlier. 00:48:18 Barry Fisher Per earlier, by virtue of paragraph 12 and then you read paragraph 12, and paragraph 12 purports to limit the persons holding to severance to the Employment Standards Act. 00:48:18 Right? 00:48:30 Barry Fisher But then there's a defect in that. 00:48:32 Barry Fisher So so here the employer says what's a two year contract, but I can get. 00:48:36 Barry Fisher Out of it by giving you. 00:48:38 Barry Fisher Two weeks notice with no. 00:48:39 Barry Fisher Benefits, that's the defect that you have to provide. 00:48:43 Barry Fisher The court then finds that termination clause is illegal. So rather than paying the guy two weeks, they now owe him 23 months. 00:48:51 Barry Fisher So it's. 00:48:52 Avi Charney So very interesting. 00:48:53 Avi Charney I mean if if I was an employer here and you're giving me advice as an employer, how do I make a contract that makes sure the Employment Standard Act is incorporated and my employee? 00:49:04 Avi Charney Not that I'm like this, but that my employer gets as little as possible at the end. 00:49:08 Avi Charney Of the day is is there a? 00:49:10 Avi Charney Foolproof way that that that's done. 00:49:12 Barry Fisher Yes, there is that this is the way I drafted contracts 20 years ago. 00:49:16 Barry Fisher Never ever limit the liability to employment standards. 00:49:19 Barry Fisher Just give a little bit more. 00:49:21 That's all. 00:49:23 Barry Fisher There's a dancer and trust me, I am not religious at all, but in the Torah I understand, you know, there's things you can do and things you can't do, but the rabbis set up rules knowing that if you it's like the speed limit. 00:49:36 Barry Fisher If you have a speed limit of. 00:49:37 Barry Fisher 100 clicks, you know? 00:49:38 Barry Fisher People are going to go a. 00:49:39 Barry Fisher 110 Right, you just know they are. 00:49:42 Barry Fisher You shouldn't go 125, but you know you're gonna go 100. 00:49:44 Barry Fisher You can't. 00:49:45 Barry Fisher So if you really don't want people to go over 110, you. 00:49:48 Barry Fisher Make the speed limit 80. 00:49:49 Barry Fisher That's all, so it's putting up barriers, right? 00:49:52 Barry Fisher So if you if you try to go down that line with the perfect clause, one little mistake you over it. 00:49:58 Barry Fisher If you just offer, if you just make your termination clause better than the Employment Standards Act, which is not hard. 00:50:05 Barry Fisher Because it's very cheap. 00:50:06 Barry Fisher Cheap, then you almost guarantee success. 00:50:09 Barry Fisher Not most of the cases in which the clauses are being thrown out or because the employer is trying to limit their liability to the extreme minimum. 00:50:19 Barry Fisher So the answer is, don't do that, just be. 00:50:22 Barry Fisher A little more generous. 00:50:23 Barry Fisher Than the Employment Standards Act and and. 00:50:26 Barry Fisher Then you're covered. 00:50:28 Avi Charney Very nice, OK, all great wisdom, good good. 00:50:32 Barry Fisher Almost employers don't do that because. 00:50:36 Barry Fisher 'cause some, either some corporate lawyer I keep on mallidi against corporate lawyers, 'cause that's the permanent didn't ask me back whenever. 00:50:43 Barry Fisher But part of it is them they have to have everything absolute and and it's I see it so often I'll see I see an ESA clause which has a defect in it. 00:50:56 Barry Fisher But the employer upon termination offers the employee more anyways. 00:51:02 Barry Fisher And then the employees as well. 00:51:04 Barry Fisher The clauses illegal. 00:51:06 Barry Fisher I don't care if you're offering a little bit more now, I get reasonable notice if the same employer had simply drafted a contract providing for a somewhat more. 00:51:16 Barry Fisher I don't like the word. 00:51:18 Barry Fisher Use the word generous. 00:51:19 Barry Fisher A notice period in. 00:51:20 Barry Fisher Excess of of. 00:51:23 Barry Fisher The minimums, but not the common law. 00:51:25 Barry Fisher I mean, it's not an employer that I used to when I drafted contracts. Even if you said something as simple as you get the employments, everything you entitled to under the Employment Standards Act plus $1000. 00:51:38 Barry Fisher That would be impossible. 00:51:40 It's fast. 00:51:40 Barry Fisher I know right down and they do this or they have a defect in their bonus plan and one of the issues of Wax Dale is one of the key issues of wax. 00:51:49 Barry Fisher Dale was think of it as a poison tree. 00:51:53 Barry Fisher If there's one branch of the of the claws that's that is illegal. 00:51:59 Barry Fisher It poisons the whole thing. 00:52:02 Barry Fisher So all you gotta do is find. 00:52:03 Barry Fisher One defect or even bad. 00:52:05 Barry Fisher Find an ambiguous provision. 00:52:09 Barry Fisher It's kind it it. 00:52:10 Barry Fisher It's really ironic 'cause we all know nobody would read these things. 00:52:15 Barry Fisher Nobody even understands them when they sign them, but it's very similar to. 00:52:19 Barry Fisher You can imagine three months and 12th century arguing about how many angels spit on the end up in the arguments. 00:52:26 Barry Fisher Over employment standards often look like that. 00:52:29 Barry Fisher It's a game. 00:52:30 Barry Fisher We play it safe. 00:52:31 Avi Charney They have implications, though. 00:52:32 Avi Charney Any implications with. 00:52:33 Avi Charney The money at their root. 00:52:34 Barry Fisher OK, any more implications? 00:52:35 Barry Fisher What the courts? 00:52:36 Barry Fisher Are really saying is. 00:52:38 Barry Fisher You know, or what the message is? 00:52:41 Barry Fisher Just don't try to do it. 00:52:42 Barry Fisher Employment standards contract be a little more generous. 00:52:45 Barry Fisher Who cares, yeah. 00:52:45 Avi Charney Yeah, fair enough, we're almost out of time, so I have a couple of more short questions for you to wrap it up. 00:52:53 Avi Charney Also, it's been so informative and helpful and I appreciate all your words of wisdom. 00:52:58 Avi Charney But if you look back on your impressive successful career, do you think that there's any keys to success? 00:53:04 Avi Charney Anything that? 00:53:05 Avi Charney A younger lawyer could perhaps duplicate and follow in your footsteps in a way. 00:53:13 Barry Fisher The two things that I did in my life. 00:53:16 Barry Fisher That got me to where I am, I think. 00:53:18 Barry Fisher Is I got in early? 00:53:20 Barry Fisher I started doing employment. 00:53:21 Barry Fisher Law when it was new. 00:53:24 Barry Fisher It almost didn't exist so and same thing with mediation I got into. 00:53:29 Barry Fisher Mediation, when it was new. 00:53:32 Barry Fisher So it's much easier to break into an issue both when I started employment law, I started doing mediation. 00:53:39 Barry Fisher I didn't have to sell myself as much as selling the process my my marketing in in the early 80s as a lawyer was just informing people that they had rights, something they didn't even know about. 00:53:52 Barry Fisher And the same thing with mediation. 00:53:54 Barry Fisher When I started doing mediations, I was one of the. 00:53:57 Barry Fisher The first crew really to do it in employment law, so it was easier, so I know it's hard because so many areas are so full now, but it's easier to break into a new area than it is to knock your head off. 00:54:11 Barry Fisher Around an old area when I was going when I was a young lawyer. 00:54:15 Barry Fisher Like you said, you were a civil litigator. 00:54:17 Barry Fisher That meant you did personal injury. 00:54:19 Barry Fisher I always that was never my choice. 00:54:22 Barry Fisher I didn't like medical reports. 00:54:23 Barry Fisher I didn't really care. 00:54:24 Barry Fisher Whether someone was. 00:54:25 Barry Fisher On the left side of the road or the. 00:54:26 Barry Fisher Right? 00:54:26 Barry Fisher Hand side of the road. 00:54:28 Barry Fisher And I also knew that I'd be carrying somebody back for the next 20 years, and I'm not a good bag carrier, so try to find an area. 00:54:36 Barry Fisher That try to find a niche. 00:54:39 Avi Charney OK, that's nice. 00:54:39 Barry Fisher It doesn't almost easy so. 00:54:41 Avi Charney To paraphrase, is, uh, have the courage to take on a new area, new challenge. 00:54:46 Barry Fisher Yeah, you know I. 00:54:47 Barry Fisher I mean, 10 years ago there was no such thing. 00:54:49 Barry Fisher As privacy law. 00:54:50 Barry Fisher And now there's privacy lawyers there was. 00:54:52 Barry Fisher It could be a cyber. 00:54:53 Barry Fisher I don't know what half these specialties are anymore. 00:54:56 Barry Fisher You know cyber lawyer or something like that, so that that's probably the best way. 00:55:01 Barry Fisher So you get in on the ground. 00:55:02 Barry Fisher Floor and then five years later you're an expert because you know more than anybody else because nobody else is doing it. 00:55:08 Barry Fisher You know, breaking into an established area is way more difficult, right? 00:55:13 Avi Charney OK, and I guess there's a, uh, last kind of question is, uh, general advice for young lawyers, law students. 00:55:21 Avi Charney It could be general advice or specific advice could be reading suggestions, could be anything that comes to mind. 00:55:28 Avi Charney What are the last words you want to leave the younger generation with? 00:55:33 Barry Fisher Well, this is more for the law schools. 00:55:34 Barry Fisher OK, you're teaching us wrong. 00:55:35 OK. 00:55:38 Barry Fisher OK, when I was a. 00:55:40 Avi Charney Moving back to the, the students now talk to the law students. 00:55:43 Barry Fisher Well, it's really the props. 00:55:44 Barry Fisher It's the people who designed the courses. 00:55:46 Barry Fisher I was a B plus student. 00:55:48 Barry Fisher All my Life OK? 00:55:52 Barry Fisher The difference between a B student and an A student was the A student caught more of the. 00:55:56 Barry Fisher Issues, remember that one issue? 00:55:59 Barry Fisher So we train lawyers to look for every possible argument, every possible dispute, and throw it on the table. 00:56:10 Barry Fisher So what happens is the a student gets the good job and he's the one or she's the one who thinks up. 00:56:16 Barry Fisher Oh, it's just not a notice case. 00:56:17 Barry Fisher This punitive damages has aggravated his mental distress. 00:56:21 Barry Fisher The whole yeah. 00:56:23 Barry Fisher The C student just looks at and says it's a notice case. 00:56:27 Barry Fisher Well, just, oh, that's all. 00:56:29 Barry Fisher This other stuff. 00:56:29 Barry Fisher Well, I didn't spot all. 00:56:31 Barry Fisher These issues, I didn't get a good mark. 00:56:33 Barry Fisher Most of what the a student towns is garbage. 00:56:37 Barry Fisher 'cause they miss the for it. 00:56:39 Barry Fisher What is it for us for that reason, missing whatever. 00:56:41 Barry Fisher So we should be teaching law students. 00:56:46 Barry Fisher The essence of certainly litigation. 00:56:48 Barry Fisher I'm not talking about commercial or something. 00:56:49 Barry Fisher Essence of litigation is your client is in a dispute. 00:56:53 Barry Fisher What is the best way of resolving that dispute? 00:56:57 Barry Fisher Not your clients in the dispute. 00:56:59 Barry Fisher Think up every stupid little legal argument you possibly can, throw it into the mix. 00:57:05 Barry Fisher Oh, and by the way, threaten the other side. 00:57:08 Barry Fisher With immense outcomes. 00:57:11 Barry Fisher We believe litigation is based on the premise. 00:57:14 Barry Fisher That I'm going to. 00:57:15 Barry Fisher Threaten you with extinction and you're going to die. 00:57:20 When you're on the. 00:57:21 Barry Fisher Other side, it's like you're threatening me. 00:57:24 Barry Fisher Up you. 00:57:25 Barry Fisher And I threaten you back. 00:57:27 Barry Fisher This does not lead to dispute resolution. 00:57:31 Barry Fisher That's my major message. 00:57:33 Barry Fisher Like think the client wants the dispute resolved. 00:57:37 Barry Fisher Any client who says I want to go to court on this is probably an idiot and he's never been to court. 00:57:43 Barry Fisher They want her resolution. 00:57:45 Barry Fisher Compromise is not a bad word. 00:57:48 Barry Fisher OK. 00:57:49 Barry Fisher So your client wants to resolve the dispute and he or she is looking to you to help them resolve this new now full gun litigation may be the best way, but probably not. 00:58:02 Avi Charney And bring a dose of psychology to understand the underlying issues. 00:58:08 Barry Fisher Yes, I understand the way and and that's you know part of that is training. 00:58:12 Barry Fisher Part of that is empathy, sympathy, EQ. 00:58:15 Barry Fisher Whatever you call it and and that's harder when you're younger. 00:58:20 Barry Fisher Maybe, maybe not. 00:58:21 Barry Fisher Actually, I take that back sometimes. 00:58:23 Barry Fisher The older people who works at it. 00:58:25 Barry Fisher You know, yeah, it's putting people in issues understanding what motivates people you. 00:58:29 Barry Fisher Know noises, I'm happy to go to. 00:58:30 Barry Fisher Court you. 00:58:31 Barry Fisher Well, your client may not be, you know. 00:58:34 Barry Fisher That one of the nicest, the two nicest things I hear at at the end of the mediation or the lawyer will say thank you very much. 00:58:41 Barry Fisher I never thought it would resolve. 00:58:43 Barry Fisher That makes me feel good and then one of the lines I use on on employee not on either litigants. 00:58:49 Barry Fisher That's a matter resolved. 00:58:50 Barry Fisher If say, you're close to. 00:58:52 Barry Fisher I make this comment about 90% I I do a 3 hour mediation and I charge $2600. 00:59:01 Barry Fisher Uh, and I say. 00:59:03 Barry Fisher For the first two hours for the 1st 2 1/2 hours I. 00:59:06 Barry Fisher Charge you $600. 00:59:08 Barry Fisher I charge you $2000 for the last 30 minutes. It's all about. 00:59:11 Barry Fisher Closing the deal. 00:59:12 Barry Fisher So one of the closing techniques I use. 00:59:15 Barry Fisher If I'm if I'm. 00:59:16 Barry Fisher Close, I'll say to the plaintiff. 00:59:18 Barry Fisher Usually plan. 00:59:19 Barry Fisher Did you sleep last night? 00:59:23 Barry Fisher How would you like to sleep tonight? 00:59:27 Barry Fisher Give up 1000 bucks and you can sleep tonight. 00:59:30 Barry Fisher Understanding that it's the client's problem. 00:59:33 Barry Fisher Not your problem. 00:59:35 Barry Fisher That that's the key and I I have three sons who are lawyers and I'm constantly telling you that to Daddy. 00:59:41 Barry Fisher What should I do this like I don't know, give the client advice. 00:59:44 Barry Fisher It's the client's call. It's not your call. It's not your case. OK, there are many reasons people will settle for more than they should have paid, or less than they should have received. 00:59:56 Right? 00:59:57 Barry Fisher And be conscious. 00:59:58 Barry Fisher Of that so OK. 01:00:00 Avi Charney Beautiful last question. 01:00:02 Avi Charney Before I let you go is are there any hopes for the future employment law? 01:00:07 Avi Charney Being a lawyer in general, any sort of changes you want to see, or you may be happy with the way things are. 01:00:15 Barry Fisher I would love to be employment log dictator for a day. 01:00:20 Barry Fisher Look, I rewrite a lot of a lot of. 01:00:22 Barry Fisher What we do is silly and stupid. 01:00:26 Barry Fisher And there are, I think, simple solutions. 01:00:29 Barry Fisher Uhm, I don't see them happening. 01:00:32 Avi Charney Maybe you should become a judge and then you can make it all happen. 01:00:37 Barry Fisher Too old for that, I wouldn't. 01:00:38 Barry Fisher I couldn't have the. 01:00:39 Barry Fisher Patience to do. 01:00:39 Barry Fisher It and whatever. 01:00:41 Barry Fisher It's it's it's. 01:00:42 Barry Fisher It's unfortunate, it's just. 01:00:44 I go back. 01:00:45 Barry Fisher To the notice period, it is absolutely. 01:00:48 Barry Fisher Ridiculous that we keep on re litigating something. 01:00:51 Barry Fisher Short service cases are the hardest. 01:00:54 Barry Fisher People with less than, say, three years service, then notice the ability to predict the notice period. 01:01:00 Barry Fisher Is almost off the map could be 3 months, could be 12 months. 01:01:04 Barry Fisher Like would you hire A plumber? 01:01:06 Barry Fisher To come into your house. 01:01:08 Barry Fisher And when you say how much is it going to cost to fix the toilet, I don't know. Let me fix it first and I'll give you a bill for either 300 or 1000 bucks depending. 01:01:15 Barry Fisher On how I feel at the end of the of the day, it's ridiculous. 01:01:19 Barry Fisher And as we go. 01:01:20 Barry Fisher People, young people today are not going to be employees for 25 years. This is not going to happen anymore. 01:01:26 Barry Fisher Companies are don't last 25 years anymore, so I don't know statistically what it is, but I suspect among people under 40 the average period of time they spend in a job is probably less than five. 01:01:40 Barry Fisher So that means the highest number of terminations are going to be short service cases and then the worst predict. 01:01:49 Barry Fisher And that's just not fair to. 01:01:50 Barry Fisher Anyone, yeah? 01:01:52 Barry Fisher And I. 01:01:54 Avi Charney Yeah, hopefully they get some clarity in that area. 01:01:57 Barry Fisher I don't see it happening, I just don't. 01:01:59 Barry Fisher I just for various reasons. 01:02:02 Barry Fisher I just there's no. 01:02:03 Barry Fisher Reason to believe. 01:02:04 Barry Fisher It'll get easier in the future than it was in the past, and courts think up and and and legislatures think up new employee rights all the time. 01:02:13 Barry Fisher Which is fine generally, but they often don't understand how it plays out in the real world. 01:02:20 Barry Fisher So they pass a statute that sounds wonderful and beautiful, and then in the real world, it's a disaster. 01:02:27 Barry Fisher It's abused. 01:02:28 Barry Fisher It's used by both sides, contrary to what their intentions are. 01:02:33 Barry Fisher And it creates more litigation and I get to keep on working. 01:02:36 Avi Charney Yeah, it keeps lawyers and mediators busy. 01:02:39 Avi Charney At least that. 01:02:40 Barry Fisher He's lawyers and mediators, busy. 01:02:42 Barry Fisher That's that's the one attribute. 01:02:43 Barry Fisher I suppose it could. 01:02:44 Barry Fisher Say so yes, I. 01:02:45 Barry Fisher Would love to be dictator employment dictator for a date. 01:02:49 Barry Fisher But maybe two days. 01:02:50 Avi Charney We'll see what we can do to get you there. 01:02:53 Barry Fisher No, thank you. 01:02:56 Avi Charney It's really been enlightening and informative. 01:03:00 Avi Charney You've opened a lot of windows into climate law for myself, the listeners. 01:03:05 Avi Charney I look forward to staying in touch with you. 01:03:08 Barry Fisher OK.