Judicial Dispute Resolution 2001: A Canadian Perspective 

The Honorable Hugh F. Landerkin, Q.C. [1] and Professor Andrew Pirie [2]

We humans are social beings. We gather together: as partners, as family, as groups, as communities, as countries. From this wellspring, we develop customs, norms, and social mores. As these groups intersect in society, these same customs, norms, and mores co-mingle, and from this social interaction we learn to govern ourselves through sets of rules. Many of our rules come from our personal and professional world: the rules of games; the rules of relationships; the rules of our social and political clubs; the rules we learn at our jobs.

Rules also come to us through our Legislatures and Parliament, which design and pass laws to govern society. Some laws are passed by our Legislatures and Parliament to implement social policies that are deemed to be beneficial to this necessary social functioning. We desire rules that set boundaries, the limits of appropriate social behaviour, so that we may function effectively, both as individuals and collectively, and attain that which we desire in a well ordered society.

Further, laws are created to permit resolution of conflicts in a fair and efficient way. Some of our substantive and procedural laws dealing with conflict resolution have a constitutional imperative: the individual in our society retains a set of basic rights and freedoms - the hallmark of living in a free and democratic society. The strong, the powerful, the wealthy, will not hold sway over the marginalized, the poor, the weaker individual in this land. Thus we have two kinds of rules: private laws and public laws.

This inter-action of rules, laws and process, is the essence of Judicial Dispute Resolution (JDR), the activities of judges within our public adjudication systems, our courts, yet exercised in a manner more akin to the multi-faceted world of Alternative Dispute Resolution (ADR), the world of private dispute settlement. In this paper, we wish to focus on the developing concept of JDR, with the rubric of civil law. In so doing, we recognize a certain duality. We understand the distinction between substantive law and procedural law. We recognize citizen’s rights to both private dispute resolution of civil conflicts and to public adjudication as well. In so doing, we assert we must always be concerned with both substantive justice and procedural justice. Outcomes and relationships are of equal importance.

In Canada, we grant a party to a dispute the choice of dispute resolution systems: ADR, the private appropriate alternative to the court systems; or, Adjudication, resolution of these same disputes in our public courts. We assert this duality has existed for as long as we have had conflicts, and this has been and continues to be a common feature of Anglo-American jurisprudence.

While recognizing the term ADR has a certain elasticity to its meaning, with a tinge of modernity to it, the reality is we have had such systems operating within society for some time. Today, for many, there is a great debate about these two systems. Indeed, the Editors of The Harvard Law Review suggest their interaction is a critical issue of the new millennium. Public dissatisfaction within the courts creates a new dissonance in the dispute resolution community. Many claim that ADR, in its many facets, offers a better way. Privatization of justice appears to be taking root as governments balance budgets, cutting scarce resources even further, with little prospect that courthouses, multi-door or not, and the necessary judicial functionaries, will be expanded to meet the demands of our right’s-based, litigious society. Have we disenfranchised, on economic grounds alone, many of our citizens for whom this very public system exists, a system designed through the genius of Anglo-American jurisprudence to bring law to every person’s door?

We believe the ADR odyssey has impacted on our court systems. We say this is a good thing. We say this demonstrates the essential health, strength, and character of our legal systems, systems that are dynamic, albeit in an incremental way, growing, adapting, and creating through new substantive laws and procedural rules.

We recognize reform is in the air. This is not a new phenomenon. Indeed, as Tomasic and Feeley demonstrate:

“Responding to long-standing complaints that the courts are overloaded, too costly, and too time consuming to afford ordinary citizens access to justice, and that the formality of the courts precludes them from identifying root causes of interpersonal disputes, and, hence, effecting lasting settlements, a number of reforms have been put forward to simplify and supplement existing legal processes.

... they (reformers) have been encouraged by the perception of a crisis in law, calls for delegalization, plans for simplification of legal processes and attacks on professionals in general.

The belief that the legal system has become too complex and unresponsive to meet community needs for justice has led to two types of efforts. One of these has been to simplify and streamline court structures and procedures. The other has involved attempts to remove disputes from courts entirely by taking them to less formal, more responsive forums.”

Our thesis is that ADR and Adjudication, as processes, exist with some common goals, to permit dispute resolution to occur. With ADR, individual autonomy, flexibility, and choice are prevalent norms. In Adjudication, due process, procedural fairness and judicial objectivity predominate.

We hold the view that ADR and Adjudication are not like two tectonic plates constantly pressing against each other in some eternal grinding fashion, ready to explode in an instant. Rather, we believe that our Adjudicative system can adopt some of the best features of ADR and permit greater procedural and substantive justice for parties, so that our public legal systems are more efficient, more economic, and more efficacious.

Every citizen is entitled to a choice: public or private dispute resolution. We believe every citizen who chooses the public system, our courts, has a right to a trial before an independent, impartial judge, with the Rule of Law applying. This said, not every case requires a trial. Judges today have skill sets beyond sitting impartially and impassively “on the woolsack” in trial courts, being the reasonable person, that is, the reasonable person in the community, fully informed, acting dispassionately, applying community standards, if these same standards are reasonable. Judges are masters of their own house: as case manager judges, pretrial conference judges, settlement conference judges, and mini trial judges, as well as motion and trial judges. Judges control the court process.

Here, in executing these judicial functions, the application of ADR theories, practices, and skills animate judicial skill sets. This is the new world of JDR, judicial dispute resolution. We believe, with appropriate competencies gained through experiential knowledge and judicial training, many judges have the necessary technique, theories, and “presence” or “gravitas” to assist parties in reaching their own resolutions without the necessity of a formally imposed decision by a different trial judge. Judges can and should facilitate the “bargaining in the shadow of the law”: by imposing deadlines; by making every step in the action worthwhile by advancing the case towards solution; by reducing adversarial differences; by offering insights into creative or unique ways of resolving the particular issue before the court; by assisting implementation of these very same case resolutions, all the while acting judiciously. These judicial tasks are difficult.

Not all cases admit to any or all such judicial intervention. Judges must ascertain which cases are suitable for such potential judicial interventions. Justice Judith S. Kaye (as she then was) of the New York Circuit Court of Appeal notes:

“As a society we seem to have developed a mind cast that the courts should resolve every crisis in our lives, and the escalating … court filings show there is no relief in sight … we all recognize that cases are more than numbers and statistics. They represent flesh and blood controversies often profoundly affecting people’s lives. Moreover, court judgments throughout history have shaped and defined matters of great societal significance … however, there are still hard realities about the litigation process today that cannot be ignored … many cases in the courts - particularly those involving disintegrated personal relationships - probably do not belong there at all; indeed, keeping such disputes in formal litigation mold may often times actually exacerbate the human tragedy … Therefore, it is essential that we find those cases and non-cases that are needlessly distorting and misshaping our adversary system and resolve them in other ways.”

We assert cases can be assisted by JDR. Our task in this paper is to ask three critical questions about JDR: (1) can judges do it? (jurisdiction); (2) should judges do it? (policy), and (3) how do judges do it? (skills).). We conclude that JDR, within prescribed limits, is a permissible judicial function. For our American cousins, this issue is no longer moot, as judicial intervention is well recognized.

We therefore endorse JDR, in a qualified way, and in so doing, recognize a fundamental social axiom: the more you involve people in the process, the more satisfied they will be with the outcome regardless of what that outcome is. People are interested in more than just outcomes; relationships and procedural justice are important as well.

By involving the “skills, science and the law” of ADR in the Adjudication system, our legal systems shall continue to bring law to every person’s door, potentially improving the degree of user satisfaction with both the process and the outcomes, all the while removing some unnecessary burden from the courts..

An ancient Chinese proverb tells us that “To know the road ahead, Ask those coming back.” In order to understand where we are, it is important to look at where we have come from. The interaction and mutual influence of formal and informal means of dispute resolution is long standing. A journey through history demonstrates the natural evolution of modern JDR. This experience forms part of the decision-making continuum in dispute resolution processes across cultures. Fitting the fuss to the forum is a common way of examining this inter-relationship. We believe we can also describe it as involving people with the process, what we call bringing law to every person’s door.

Thomas Jefferson noted: “The execution of the laws is more important than making them.” Indeed, in all conflict cases, two concerns operate - procedural justice, the way we process the conflict, and the objective substantive law - which produces the outcome. “Process and substance are distinct but related; one affects the other.”

This is what Roscoe Pound describes as ”…it is functional law: … ‘the law in action’ and also ‘the law in books’; law relatively fixed, but also fluid; law influenced by history and disciplined by precedent, but also alert to the fact that history and precedent should not dominate the solution of the problems of an every youthful society.”

The debates articulated today, regarding the appropriate relationship between ADR and Adjudication, as functional law, between ‘process’ and ‘substance’ are not new. Sanchez’s historical analysis of dispute processes in Anglo-Saxon England demonstrates this theme, played out in the culture of the time, with a surprising ending. Dispute processing was alive and well, from the 7th through the 11th centuries A.D. Sanchez’s research portrays a wide array of processes “akin to modern day adjudication, arbitration, mediation, and negotiation and that these processes were available to litigants during the lifetime of a lawsuit on a dispute processing continuum”. Their goal was indeed modern “… fostering respect for the law and legal processes, effecting the practical and enduring resolution of disputes, and promoting resolution of the parties”. Disputes in this period could be commenced by arbitration or adjudication - concurrent processes, with a common feature, a third party decision-maker. Discovery of a sort was permitted, and a zero sum, winner-take-all outcome resulted. But, as Sanchez notes, “neither process was rigid nor inequitable … each aspired to be fair.”

Of particular interest to our discussion of JDR, Sanchez notes that the legal decision-maker, be it a judge or arbitrator “often encouraged parties to reach settlement agreements.” The surprise ending Sanchez discovers is that after reaching judgment on the merits, and after this was announced, “but before these judgments were procedurally finalized” a settlement negotiation took place where “The decision-maker often changed hats and became third party facilitators or mediators.”

Considering the roots of JDR turns us to a look at the growth and formalization of mediation historically. We view the mediation process as the anchor to the ADR movement. Moore gives us a historical picture of mediation around the globe, stemming from religious cultures. Jewish communities in biblical times utilized mediation and this tradition continues today. From scripture, we know (1 Timothy 2:5-6) that Jesus is seen in the Christian world as the mediator between God and man, and thus clergy adopted a mediator’s role in the Christian religion through the Renaissance period.

The role of the mediator is important in Islamic cultures as well. Khadi (Quadi) justice is known to students of judicial discretion through King Solomon’s custody decision as the most familiar example. Khadi justice is:

“Adjudication of a purely ad hoc sort in which cases are decided on an individual basis in court and in accordance with an indiscriminate mixture of legal, ethical, emotional and political considerations … Khadi justice is irrational in the sense that it is peculiarly ruleless, and makes no effort to base decisions on general principles, but seeks, instead, to decide each case on its own merits, and in light of unique considerations that distinguish it from every other case …”

As Moore notes, Khadis were “specialized intermediaries” who, by reason of their position in their own communities, had the power to interpret and apply both customary law and codified law.

In Indonesia, a musyawara process, a consensual management procedure, existed from the earliest times and is still invoked today. In Hindu villages, the current panchayat justice system has existed since early times there, then and now, in which a panel of five members of the community both mediate and arbitrate disputes and act in administrative matters as well. Similarly, many Asian communities, where religious practices and social philosophy flow together, use a form of mediation based on consensus, morality, balance and harmony, both within one’s self and with the world.

A similar process evolved with the development of the Justice of the Peace system in England in the early 14th century. Justices of the Peace were not legally trained, but were men of substance and respect in their own communities. By Royal Prerogative, Justices of the Peace received a wide range of administrative tasks beyond their criminal jurisdiction. They were quite literally the governors of their community. English Justices of the Peace “became the workhorses of the English Common Law who made local government ‘work’”.

Not until modern times did these judicial functionaries become legally trained. The English Justice of the Peace system is the genesis of our Canadian Provincial Courts, which operate today concurrently with the general jurisdiction courts in a province. In its early years, the provincial court system operated alongside the general jurisdiction court, but with more informal procedures, and a less adversarial, more summary procedure. This informal approach served as an important alternative to the more formal courts of general jurisdiction. Clearly, concerns regarding inadequacies of our court systems are not new. As Tomasic and Feeley’s note:

“… historically we have seen the pendulum of legal change swing from poles such as formality and informality, complexity and simplicity, professionalism and lay decision making, adversary and inquisitorial approaches, and the poles of greater and lesser concern for individualization. Indeed these fluctuations reflect tensions inherent in the law itself, expressing as it does a multiplicity of conflicting and competing goals. They concluded that the current embrace of informality (in 1982) is part of this historical ebb and flow”.

Over time, Legislatures expanded the Provincial Court’s jurisdiction, so that today it extends well beyond the small case, and employs several distinct procedural models: adversarial, summary administrative, and inquiry. This bifurcated court system distinguishes the Canadian courts from the adversarial model of our American cousins.

Thompson describes these three models. The full-scale adversarial model is well known to anyone familiar with criminal trials. Litigation in the general jurisdiction court, with federally appointed judges presiding, applies this model, with varying degrees of rigour, depending on the nature of the case, counsel, and the judicial control exercised. Similarly, in the provincial criminal court, this model also applies. The adversarial model emphasizes formality of procedure and strict application of the rules of evidence. It is essentially a due process model of decision-making, party driven, with extensive pretrial disclosure. The parties are masters of their own rights, deciding how to prepare and present their case to an impartial, detached decision-maker, with ample pretrial opportunity to investigate, to obtain disclosure and proof, and to prepare arguments.

The summary administrative model expedites process by minimizing technicalities. Two assumptions underlie this model: neither the value of the interests at stake to the parties, nor to society as a whole, is large enough to warrant the cost of a full investigation and presentation by the parties. Often cases are repetitive, so the risk of erroneous decision is not significantly altered by summary procedures. Thompson calls this the “small stakes branch” or the “simple cases branch”. Pleadings are straightforward or dispensed with, the pretrial maneuvering of the adversarial model does not exist, and motions, if heard at all, are considered in busy docket courts. Informal procedures are the order of the day. Where the adversarial model leaves process control to the parties, this model introduces a specialist judge to the proceedings, familiar with the issues and the process. The range of evidence is generally narrow and the judge takes an activist role. The rationale for this “get to the merits” procedure is “the traffic cannot bear the cost or the time”.

The summary administrative model is designed to promote conciliation, avoid competitive, adversarial conflict and expedite the hearing of the case. Particularly in domestic disputes, the parties most frequently are the parents of children who will be involved with each other for as long as their sons and daughters remain children. Relationships matter. A conciliatory approach to their problem solving is thought to be more appropriate than the competitive model used in adversarial proceedings. Thompson found this model more open to procedural modification than the rigorous full-scale adversarial model, since its goal is fundamental fairness rather than strict due process.

Thompson’s third model, the inquiry model, stresses an individualized, future oriented, predictive and planned decision rather than the adjudication of past acts, a characteristic of the adversarial model. The inquiry model tribunal controls the process with the parties before the tribunal having the status of intervenors. Safeguarding the rights and interests of the stakeholders through due process control is of less concern to the tribunal than the achievement of the best possible outcome. Fatal Inquiry Hearings and some Child Protection proceedings in The Provincial Court typify this inquiry model.

It is evident that procedural, as well as substantive justice has long been important. Informal and formal approaches to dispute resolution have, throughout history overlapped and influenced each other, rather than remain entirely separate and distinct. Disputants have been able to choose both how their dispute is handled and whom to turn to. The role of the person assisting with dispute resolution has been multi-faceted. Judges, religious leaders, and decision-makers, although they are approached to adjudicate dispute and proclaim settlement, have turned to facilitation skills, assisting parties reach their own settlement.

With this history behind us, although very much with us, we now turn to look at current discussion of ADR, Adjudication and JDR.

Nowadays, North American students of ADR might well start with the 1976 Pound Conference convened to honour Dean Roscoe Pound and reflect on the causes of popular dissatisfaction with the administration of justice. A review of literature discussing ADR/JDR since then brings to light current debates. Much of the modern thinking and writing about the confluence of ADR with JDR, the processes, the problems, the potentials, and the prognostications for the future, has taken place since the late 1970’s. Much of the early and continuing debate regarding ADR, Adjudication and JDR arises in the United States. It must be remembered that in Canada, courts operate in four ways: with an adversarial model, with a summary administrative model, with an inquiry model, or with a hybrid model. These are distinctly different than those used within the American system, which, to generalize, employs an adversarial model which is characteristic of the individualistic American personality.

While the Pound Conference in 1976 may be a convenient starting point, it is useful to look back to some earlier, insightful statements by Roscoe Pound himself, particularly regarding his functional view of the law. Our discussion must start with Roscoe Pound’s seminal address to the American Bar Association’s Annual Meeting in St. Louis, in 1906, on “The Causes of Popular Dissatisfaction with the Administration of Justice” where he deals with “civil justice” issues. Much of what Pound said in 1906 resonates today:

“The causes of dissatisfaction with the administration of justice may be grouped under four main heads: (1) Causes for dissatisfaction with any legal system, (2) causes lying in the peculiarities of our Anglo-American legal system, (3) causes lying in our American judicial organization and procedure, and (4) causes lying in the environment of our judicial administration.”

Pound found that part of the reason for so much difficulty could be illustrated in this way:

“Under the second main head, causes lying in our peculiar legal system, I shall enumerate five: (1) The individualistic spirit of our common-law, which agrees ill with a collectivist age; (2) the common-law doctrine of contentious procedure, which turns litigation into a game; (3) political jealousy, due to the strain put upon our legal system by the doctrine of supremacy of law; (4) the lack of general ideas or legal philosophy, so characteristic of Anglo-American law, which gives us petty tinkering where comprehensive reform is needed, and (5) defects of form due to the circumstances that the bulk of our legal system is still case law … Our system of courts is archaic in three respects: (1) In its multiplicity of courts, (2) in preserving concurrent jurisdictions, (3) in the waste of judicial power which it involves … Multiplicity of courts is characteristic of archaic law”.

The point Pound underscores is that throughout history there has been a restlessness or dissonance over the authority of the courts as regulator of our behaviour through laws. It is indeed a pendulum constantly in motion between the strictness of the law of rules, and the flexibility of the law of principles. Yet for Pound, there was always the optimistic outlook, for law, as he saw it, was constantly enriched through the wellspring of ideas and theories of other disciplines. This multi-disciplinary weaving of knowledge, from fields such as economics, political science, philosophy, psychology, sociology and religion into the social fabric of the law, created a new synthesis whereby law adapted to a new, modern, complex world.

The very themes so elegantly stated by Pound are revisited in 1976 in the Pound Conference. By this time, ADR, representing a grass roots movement rising in opposition to the orthodoxy of the adversarial system, sought a new, empowering balance for people by putting the individual back into the decision-making process. It was here that Professor Frank Sanders of Harvard offered what is now known as the concept of the multi-door courthouse. It was here that Chief Justice Warren Berger, of the United States Supreme Court, laid out his judicial imprimatur for alternate dispute resolution, when the Chief Justice exhorted the Bar to make greater use of ADR techniques.

The Pound Conference did not occur in a vacuum. Changes in the American legal system had been ongoing for some time. Galanter describes the history of judicial interventions antedating this conference in the development of “settlement processes” in the courts through what was then called “adjustment”, “compromise”, and “conciliation”. Galanter has an appreciation for the nexus between these processes and the modern view of “judge as mediator” processes that “compel and justify judicial involvement”. This judicial involvement recognized a distinction between conciliation and the exercise of a trial court “coercive power”. He views this interaction, the themes of conciliation and judicial administration, to be at the very core of the subsequent debate, viz., judicial participation in settlement processes.

From this early beginning, pretrial conferences became a distinct procedure by the late 30’s. In 1944, the United States Federal Court Pre-Trial Committee acknowledged that settlement was a “byproduct of good pretrial procedure rather than a primary objective to be actively pursued by the judge”, a restrained endorsement of this process. Galanter fairly notes that there were others who were “ardent proponents” of “Pre-Trial” who believed that:

“Pre-Trial seems to have developed a method of disposing of controversies, within the courts, with the aid of lawyers, but without the delay, expense and technicality that has cursed judicial process for years. It eliminates appeals. It commends itself to businessmen as a sensible and practical procedure. It provides a method by which disputes can be disposed of in a way that leaves all parties satisfied instead of one or both disgruntled and with a grievance against courts and law. It should increase the use of the courts.”

This inevitably led, at least in the United States Federal Court system, to “active promotion of settlements as early as the 60’s”. Citing another Federal Court judge from Pennsylvania, he notes:

“I feel it is incumbent upon every judge to use the pretrial as an aid in effectuating settlement … the judge can be most effective in acting as the catalytic agent to bring the two parties together … [I] in a great majority of the cases reasonable men, after all the facts are on the table, can arrive at an area of agreement.”

By the 1970’s, Galanter finds a new idealism existing in The Federal Court on this issue:

“In the words of one thoughtful federal district judge, settlement ‘produces results which are probably as close to the ideal of justice as we are capable of producing’.”

Thus, he asserts that if “settlements are good, it is also good that the judge actively participates in bringing them about. He should do this not only by management of the court … but also as acting as a mediator.” Another Federal District Court judge who spoke to a seminar for newly appointed judges in 1977, said:

“… I urge that you see your role not only as a home plate umpire in the courtroom, calling balls and strikes. Even more important are your functions as mediator and judicial administrator.”

This dramatic shift towards judicial activism in the Unites States Federal Court system became recognized in 1983 through amendment to the Federal Rules of Civil Procedure (Rule 16) so as to permit judges “to ‘consider and take action with respect to … the possibility of settlement or the use of extra-judicial procedures to resolve the dispute’ during the pretrial conference.” This is most likely the way it always has been within legal systems and therefore the United States Federal Court system is but an exemplar of this reality. Fuelling this theme and the necessary balancing of forces at work is the growth and complexity of the law; the mobility, stature, and size of the Bar; and the veritable complexity of society itself. Whatever the causative forces at play, and however one reasons this judicial activism, it has occurred. Galanter poses the acid test about this development: “What difference does it make?” We are left to wonder, in light of our literature review, if indeed there ever will be an empirically proven answer to this critical question.

At the Pound Conference, Professor Frank Sanders defined his concept of the multi-door courthouse. Here a court, through its own staff, would case differentiate: cases appropriate for mediation were diverted in this direction, i.e., long term relationship type cases; some cases would be sent for arbitration in the interest of expedition and expense; other cases would be seen by skilled communicators, who, as facilitators, would assist the warring parties to look at their underlying needs and interests. The multi-door courthouse concept of early neutral evaluation is also canvassed. In essence, Professor Sanders created, with this concept, the legal equivalency of the medical triage system. The driving force for such a multi-door courthouse was the need for effective court management, i.e., docket clearing. Striving for greater efficiency leads to a system with multiple options. This concept adopted one the hallmarks of the ADR movement as we know it, an individualized justice system where one size does not fit all. Indeed, not only has the United States Federal Court embraced this ADR role, so has the Executive Branch of the United States government, with the result that ADR now is an integral part of the American legal system.

Resnick, in her canvas of the ADR/Adjudication melding process, raises questions about the efficacy of both the United States trial court system: “I believe we are approaching a time when many a civil trial will be characterized as a “pathological event”; and the ADR process itself. Building on her earlier work, concerning “Managerial Judges” where she saw the classical role of judges changing into case managers with an accompanying potential of loss of judicial restraint through the checks and balances of the orthodox trial system , she notes: “For those who envision ADR as the blossoming of something different and generative, they should worry.” Resnick sees ADR being institutionalized and transformed into the adversarial adjudicative process that may limit options for litigants rather than expand them. She observes:

“As courts make ADR their own, that formalization may well undermine the very attributes of ADR that prompt its praise. Further, as court compels ADR, the relationship between ADR and volition weakens, pushing it ever closer to a state-imposed mode of resolution. On the other hand, when ADR means adjudication the critique of ADR as a lawless or factless process loses strength.”

Resnick, expressing what some may call a pessimistic view, in that she sees ADR and Adjudication as more competitive than complimentary, with the reality that ADR is a criticism of adjudication, suggests that:

“…those who think adjudication has something to offer had better start explaining why one would aspire to a preserve for adjudication, and why relatively highly paid government officials (to wit federal and state judges) should be empowered to do some of it. If there is an important and affirmative - if not a cheerful - story to be told for the preservation of adjudicary forms, with judges in distinctive roles, and why a culture would value, cherish, fund, encourage and sometimes insist on adjudication, then those who believe so had better speak up soon, for it is becoming increasingly hard to hear those claims.”

In Resnick’s view, Frank Sanders’ multi-door courthouse accessible to all with wide open doors for adjudication may now in fact be closing. She is not alone in these concerns.

Menkel-Meadow recalls the original grass-roots creation of mediation in the United States as an attempt to offer a reform alternative to the adversarial model, to simplify and to permit informal dispute resolution, with self-autonomy of the parties as its foundational underpinnings. This said, she believes the adjudication system has co-opted the ADR system, assuming increased efficiency, reducing dockets, but not achieving any necessary improvements for better justice. The transformative promise of mediation is lost in the legal culture. Stated at his highest, she sees ADR now as a supplement to adjudication, and not supplanting it.

If Menkel-Meadow is concerned about the adversarial adjudication system co-opting the ADR movement from its original guise, others see the reverse. Sabatino recognizes “ADR mechanisms often resemble, at least in certain respects, ‘litigation light’” where disputants go to avoid the high costs, in terms of time, money, and stress, of the orthodox model of litigation. He finds that the adversarial adjudication process in the United States, with its due process familiarity, on the record rules based evidentiary procedure, is being compromised because of ADR. Sabatino notes that adjudicative-minded writers, such as Owen Fisk and Harry Edwards, have expressed caution about displacing our traditional adversarial trial model with ADR concepts. This said, he finds the infusion of ADR processes (listed as arbitration, mediation, summary jury trials, early neutral evaluations, mini-trials, and med-arbs) as beneficial to the consuming public for their user friendly characteristics and that they are now not so substantially different than the evidentiary and procedure realms of the orthodox system of litigation.

The essence of the debate is how can and should ADR and Adjudication work both together and apart. The traditional orthodox system is an institutional one in that the court is visible and accountable, operating with predetermined rules of procedure that apply equally to all. Courts also generate guidelines for future behaviour out of past occurrences. In sum, this is the tradition of the Common Law and the Anglo-American jurisprudential system. By infusing this adjudication model’s procedure with ADR concepts, disputing parties may very well have some of their rights fettered. What makes Sabatino’s views noteworthy is that he recognizes ADR is a “form of privatized justice” and as a consequence, it is important for all to see how ADR systems work, how they are applied, and how they impact on those whom they serve. In light of this experience, he suggests that we should adapt and adopt these successful innovations from ADR concepts into the public law system for use in our courts.

At the end of the day, where does this debate take us? The American learned journal articles, as outlined in our attached annotated bibliography, debate this constant refrain concerning the privatization of this justice system and its continuing impact in the courts. We adopt the views of Menkel-Meadow:

“In my own view, ADR (in all its own variable forms) and adjudication, come to effect, supplement, and challenge each other. Thus as we encounter many dialectical relations in law (rule and discretion, common law and statute, public and private, federal and state systems), we can now add a dialogue and dynamic dimension between and amongst dispute process and system.

The theme that resonates from this review of the American legal system informs us that ADR and Adjudication have indeed co-mingled as systems. This is Stempel’s view.. Stempel raises the difficult questions about JDR: “(a) what types of ADR mechanisms or approaches are appropriate for judicial incorporation? (b) what ADR techniques are best left to privatization? (c) what degree of supervision should courts exercise over private ADR? (d) what ADR methods should be tightly regulated, discouraged or even prohibited by the court?” Once again, this article commences out of a conference on “Court Reform Implications of Dispute Resolution”. Stempel answers his questions by plowing a middle course between the pessimism of Resnick and Judge Weinstein and the optimism of some of the proponents of the ADR movement. Like Weinstein, Resnick and others,

“I see ADR as having become a part of the judicial system, perhaps inevitably and certainly for the present. Regardless of the effectiveness of ADR in particular situations, there is no doubt that socio-political forces will continue to promote it and it will not be turned back by a call for adoption of (or a return to) a greater use of traditional, full dress adjudication of disputes.”

Stempel sees that “streamlined mini adjudications” or “focus points” hold greater potential for effecting judicial improvements than the settlement brokering or broad brush resolutions of large scale claims that seem to comprise so much of the judiciaries’ ADR efforts. In particular, courts should incorporate and control the application of some forms of ADR as part of the menu of judicial services provided to disputants. Stempel believes ADR concepts can co-mingle successfully with the courts but that the courts should be careful in that “painstaking adjudication performed under rigorous rules of procedure, that carefully apply rules of law, and is subjected to meaningful quality control should still exist.” In sum, he sees that “The judicial system must adapt and expand its range of services but must retain enough of an adjudicary role to cast the ‘shadow of the law’ that enables ADR settlement to function effectively.”

Menkel-Meadow asks these same fundamental questions. She sees these as “some of the issues that are raised by these recent developments (ADR and Adjudication):

“1. What are the values of settlement and of adjudication?

2. When is a court not a court? What makes a court a “special” institution and what should it be doing? Related to these concerns are issues of legal authority for the variations on court adjudication - when a court can “order” someone to settle, require a juror to serve a non-juror function, or exclude the public from a proceeding?

3. What values should a court institutionalized ADR device serve? Who should pay? Who should have access? What are the consequences of using ADR devices for the rest of the system? When should a “public system” subsidize “private agreements”?

4. What are the politics of ADR? Are there patterns of usage? Do particular kinds of clients choose different processes? Are there differences between big cases and small cases, or in the choices of wealthy clients and poorer clients?

5. What should be the system or values implicated in case allocation - should it be a fair market? Should there be restrictions or regulations of case types? Should these programs be voluntary or mandatory?

6. How can we measure the effects of different allocations or assignments to particular processes? How should we measure the “quality” of justice?

7. What processes are appropriate within our system of dispute resolution? When is adversarialness appropriate, and when is it not? What other processes can be used while preserving our long tradition of process-fairness and rights protection?

8. On what basis should cases be settled, decided, or tried - by considering only legal rules, personal needs, or economic expediency?”

Stempel and Menkel-Meadow ask good questions for all Anglo-American legal systems. We say that in Canada, regardless of whether a legal dispute is commenced in the general jurisdiction court, that is to say a provincial trial court with federally appointed judges, or a provincial court with provincially appointed judges, regardless of whether the adversarial model, the summary administrative model, or the inquiry model is invoked, there is a legitimate place for ADR processes, skill sets, theories, and practices in our court systems. To argue otherwise would be to ignore the reality that is so clearly developed by our American cousins and is actually taking place in the courts of our land today.

We advance this view as trial courts in Canada now practice on a regular basis (1) case management, (2) pretrial conferences, (3) settlement conferences, and (4) mini trials when requested so to do, invariably by consent of the parties, in advance of trial. Indeed, we recognize that bargaining under the shadow of the law takes place both before trial litigation commences, during the litigation process, on the eve of trial, and indeed even after trial, as it always has been done, just as Sanchez has so clearly explained in her historical analysis.

It is our view that JDR in Canada at this time, absent statutory imprimatur, should concern itself with interlocutory matters between the time of commencement of litigation and trial. We will not deal with court annexed arbitration mediation, summary jury trials, and early neutral evaluations, as generally, they do not form part of the Canadian experience.

Not every dispute is appropriate for judicial settlement. We therefore assume that an appropriate justiciable case is before the court. We define justiciable when: “a dispute is said to be justiciable if, first, a specific disagreement exists, and secondly, that disagreement is of a kind which can be resolved by the application of rules of law by judicial processes”.

We examine JDR in Canada through the three critical questions already raised:

• Can judges do JDR? (jurisdiction)
• Should judges do JDR? (policy)
• How do judges do JDR? (skills)

It is of obvious importance that judges have jurisdiction to do any of these specific JDR processes. The Canadian bifurcated court system is based on common law and statutes with differing jurisdictions. The general jurisdiction court, established by Section 96 of the Constitution Act, 1867, has “inherent jurisdiction” which entitles them to jurisdiction over all matters unless expressly excluded. Our interpretation of the Supreme Court of Canada’s decision in MacMillan-Bloedel Ltd. v. Simpson, recognizes judicial dispute resolution power is not specifically ousted from the jurisdiction of Canada’s general jurisdiction court: they have this jurisdiction.

The more difficult question is what are the powers of the specific jurisdiction courts, namely the Provincial Courts of Canada. These are statutory courts with the powers the statute grants them, no more, no less. We suggest the power of these specific jurisdiction courts to do JDR is confirmed on several bases: first, on historical grounds; second, on constitutional grounds; and third, by the statutory empowerment of the legislature, i.e., as is the case for the British Columbia Provincial Court. Ultimately, and in the final alternative, we argue that inherent in the power of a court to be master of its own procedure, lies the necessary grant of power to these courts to adopt ADR skills, theories and practices into its own procedural jurisdiction, provided always that judges act judicially on a justiciable issue.

As court systems exist to provide our citizens with a forum for resolution of disputes, it appears axiomatic that judges can and should practice JDR. Case management, pretrial conferences, settlement conferences, and a judicial mini-trial are now accepted in Canada as part of the judge’s judicial repertoire. These adjuncts to motion and docket court appearances all have developed over time as Anglo-American jurisprudence has moved away from the rigors of the full dress model of the adversarial trial. This trial system still exists and must continue to exist for, here, the courts declare precedent, define or redefine laws of procedures and the substantive law of the land. Constitutional law in Canada impacts every facet of a citizen’s interaction with the state through the Canadian Charter of Rights and Freedoms. These are appropriate cases for trial in the traditional orthodox sense. Some cases are of a typology that do not, of themselves, admit to all JDR processes, i.e., domestic assault cases in the civil courts; credibility issue cases; cases of first impression.

Case management, pretrial conferencing, and mini-trials are well- understood procedures. Case management models are predicated on a goal- oriented process that structures a predictable, regulated flow for each case from filing through disposition. A judge monitors the case from the close of pleadings and should differentiate cases on some standard criteria. Generally, we see three main classifications: the standard type of case where no emergent circumstance, no unique complexity is found to exist. In a second category, an immediate hearing is suggested. Cases involving children at risk, emergent labour disputes and injunctive relief cases may qualify under this heading. Finally, there is the third type, the complex case with multiple parties and issues, i.e., a class action suit that will consume an inordinate amount of judicial and court resources. We have already introduced the notion of triage and we see this as central to the efficient administration of court resources, which includes staff, judges and space.

The American Bar Association created case management standards in 1985:

“From the commencement of litigation to its resolution, any elapsed time other than required for pleadings, discovery and court events, is unacceptable and should be eliminated. To enable just and efficient resolution of cases, the court, not the lawyers or litigants, should control the case of litigation. A strong judicial commitment is essential to reduce delay and then maintain a current docket.”

We maintain that these standards hold true as the judges control the court system, not the parties. A cultural sea change has occurred from the orthodox adversarial model earlier suggested by Professor Thompson.

The goal of a case management system is to make the sequence of events in a court action predictable and timely. The desired result is to move the resolution of cases, which is effected in more than 95 percent of the cases by settlement, from the end of the litigation system to an earlier disposition. This enables courts to set credible court dates for those cases that must be heard in this fashion.

In effecting such a system, courts attempt to control process to avoid or reduce backlog of cases through date certainty. The court and the bar acting collegially, armed with timely interventions and knowledge of the case, work together to assist in the earlier resolution of cases, be it by settlement or trial.

Similarly, pretrial conferences are a part of most if not all Anglo-American rules and procedures. Courts, on their own motion, or on application by a party, can exercise a discretionary supervisory power where it can consider: simplification of issues; amending pleadings; obtaining admissions for the shortening of potential trial time; and any other relevant issue “that may aid in the disposition of the action”. If a judge makes an order in a pretrial conference, this becomes the controlling order in the case. Further, the pretrial judge is not seized of the matter, indeed it is understood generally that such pretrial conference judge should recuse himself or herself from being the trial judge.

The Judicial Mini-Trial, a truncated trial procedure, has become part of the Canadian jurisprudential scene, especially in the Province of Alberta. Flexibility is the keynote of this process so as to accommodate the case at hand. The objective of the mini trial is case settlement. It is offered to those who ask the court for it: it is entirely consensual. It is not considered a step in the action as no specific authority exists in the Rules of Court for this procedure. Indeed, this procedure is the creation, in Alberta, of the former Chief Justice of the Alberta Court of Queen’s Bench, the Honourable W.K. Moore, Q.C.

Chief Justice Moore recognized the informal nature of this model and that it would vary from judge to judge and case to case. This said, the “Moore model” has six key components:

All counsel must agree to participate in the mini trial process.

The clients must be present while the lawyers present their arguments to the judge.

At the end of argument, the judge will render a non-binding opinion.

No costs are assessed at a mini trial.

Examination for discovery evidence may be referred to but no other evidence is to be adduced - just argument based upon facts that are agreed upon or facts essentially agreed upon.

Counsel should meet with the mini trial judge in advance of the mini trial to discuss generally how the mini trial will be conducted.

It is to be made clear at the outset that the judge who renders the non-binding opinion at the conclusion of the mini trial will not be the trial judge and will not discuss the opinion with anyone else on the bench.

If the judge’s non-binding decision does not produce a settlement, the case proceeds to trial in the usual way. As is the case with pretrial conferences, whatever is said in a mini trial is privileged.

The Alberta experience is not unique as other provinces would permit this expansive pretrial conference procedure. All of these procedures have as their genesis Rule 16 of the United States Federal Rules of Civil Procedure. The Canadian practice does not however, unlike its American counterpart, permit a judge to order a private mini trial.

Settlement conferences appear now as an offshoot of the pretrial conference procedure and are a regular feature of the Canadian court system. It is here that we see that ADR skills, theories and practices interface most clearly with our courts in this specific arena. We therefore will discuss settlement conferences under the next heading, skills.

“… in general, reconciling interests is less costly than determining who was right, which in turn is less costly than determining who was more powerful. This proposition does not mean that focusing on interests is invariably better than focusing on rights and power, but simply means that it tends to result in lower transaction costs, greater satisfaction with the outcomes, and less strain on relationship, and less recurrence of disputes.”

In our court systems, nowhere does one find a judge’s ability to assist disputing parties to find their own solution more evident and important than in settlement conferences. Equally, nowhere in our court systems does one find less control, less check and balance, less transparency. Here, a skilled judge has enormous opportunity to effect a wise and lasting settlement - one that balances the needs of a satisfactory outcome with relationship maintenance. Sadly, many recognize the converse may also hold true. Judicial power may be involved for less altruistic reasons with the potential to coerce settlement and thereby deny every citizen’s right to a free and fair trial, however honourable a judge’s intentions may be.

For it is in settlement conferences that a judge acts most like a mediator. For it is here that most of the crucial issues on judicial intervention arise: use of judicial power; issues of confidentiality; loss of judicial impartiality; judicial immunity; and judicial competency.

We wish to discuss this in two parts: first, why we think judges should conduct settlement conferences and how they go about this task; and, second, our concern about this process, its transparency, confidentiality, and issues of competency. We only can highlight these issues as is beyond the scope of this paper to write a manual on JDR.

We posit three central points to support our thesis of judicial intervention at settlement conferences, a consensual process. First, judges can offer individualized treatment of disputants’ private quarrels. From a legal perspective, we see the judge as an experienced professional, learned in the law, bound by ethical training, vetted by Judicial Council, chosen from many, independently serving the public, acting in open courts, and accountable through appellate review and peer sanction. A judge understands the concept of impartiality. Be it on the bench during trial, or in the settlement conference chamber, the role of the judge never changes. With the judge keeping settlement conferences “on the record”, this confidence in the right of the public to appear before impartial judges will never be misplaced.

Second, judges have an enormous amount of experience: as adults living within their communities; through their own personal educational background, including post graduate training in law; profound skills learned at the bar as lawyers and counsel; knowledge of and being bound by ethical standards both in the legal profession and now as a judge, such standards being enforced in each case by sanction; and by actual judicial experience as decision-maker on the bench. The knowledge gained from a lifetime of experience, must, by law, sit idle at trial for this is the rule of judicial notice. Absent knowledge of a notorious fact in the community, the adversarial adjudicative model leaves it to the parties to inform the trial judge of the issues, evidence and arguments. The trial judge sits above the well of the court and does not use this vast human experience, except to make credibility findings and in pronouncing judgment. Not so in a settlement conference. Here, this vast store of knowledge can be taken off the judicial shelf in Chambers and used in dialogue with the parties and counsel to explore the issues and potential outcome of a case at bar. Indeed, it is our understanding that settlement conferences are popular with the practicing bar as they desire the judge’s use of this fund of judicial knowledge.

Third, settlement conferences afford the parties an opportunity to take back control of their own process. Social psychologists generally evaluate people’s social experiences and relationships and institutions. Social psychologists Lind and Tyler take a broader view as they see people interested in processes as well as outcomes. This is the essence of procedural justice, that is to say procedural fairness. Subjective procedural justice concerns the capacity of each procedure to enhance the fairness judgments of those who use the process. Jurisprudential scholar, Lon Fuller, makes the fundamental point:

“Adjudication is a social process of decision. This is true not only in the sense that it is a process of decision in which the affected party is afforded an institutionally guaranteed form of participation. It is also true in the sense of the success of adjudication, and the maintenance of its integrity, depend not only on the arbitrator, but on everyone connected with the process as a whole.”

Lind and Tyler build on the theories of social psychology and find that decisions are more likely to be accepted when the procedure used to generate the decision allows participation by those affected. One of the most reliable findings of research on procedural justice is: “people react more favourably to procedures that give them considerable freedom in communicating their views and arguments.” We suggest, that by judicious choice and design of settlement conferences, a judge may enhance not only the quality of the relationship of the litigants but enhance the satisfaction with the outcome no matter what that outcome is. Routes to satisfaction depend on more than favourable outcomes. It is our experience, based on anecdotal evidence collected in JDR education, that both parties and the settlement judges find much satisfaction from a fair settlement conference and the public receives the benefit of such outcomes.

How should judges conduct settlement conferences? Absent specific skills, we firmly believe that training in conflict analysis, management and resolution theories is essential. Further, currently sitting judges (who we believe have never formally been trained in negotiation theory and practices as this would not generally have been a law school curriculum subject at the time they attended law school) should have a general understanding of approaches to negotiation, its goals and strategies. Additionally, they should recognize they are now in a settlement conference in the midst of a negotiation. In consequence, they need to understand the structure of strategic negotiation and some of the tactics in common employment today.

Finally, judges should be good facilitators and understand that the ability to dialogue is essential. The etymology of the word dialogue comes from the Greek dialogos. Dia means through. Logos means the word, or more broadly, the meaning. Essentially what a good settlement conference judge will do is become a competent facilitator employing dialogue as the basic approach. Senge, quoting Bohm, identifies three basic conditions that are necessary for dialogue: “1. All participants must ‘suspend’ their assumptions, literally to hold them ‘as if suspended before us’. 2. All participants must regard one another as colleagues. and 3. There must be a ‘facilitator’ who ‘holds the context’ of dialogue.”

Judges should seek to obtain, if they have not already, a sense of “presence” or “gravitas”. By this, we mean a judge should be a centred, integrated, congruent person, being connected to his or her governing values and beliefs and highest purpose. Some people have used the term “mindfulness” to describe this quality. We may define “mindfulness” as “living in harmony with one’s self and the world”. Such a judge brings the “Hawthorne Effect” into the settlement conference Chambers room. The presence alone of such a judge impacts favourably on the settlement process regardless of input by the judge.

At no time in this process do we countenance use of the power of the judge known as “judicial clout”, or, as is sometimes described in the vernacular, “muscle mediation”. What many young lawyers experienced years ago as “woodshedding” by a judge in the anteroom to the court room just before trial commencement is entirely inappropriate and has no place in today’s adjudication system. Case management judges, pretrial conference judges, settlement judges, as well as mini trial judges, need to recognize they must always act judiciously and be “omnipartial” to all the parties before them.

A major premise of mediation is that, by keeping the mediation process confidential, parties are encouraged to be more open and frank and this ultimately leads to more satisfactory settlements. While this may be debated, certainly we recognize mediation generally encourages the conciliatory approach as opposed to a competitive environment. This raises the question of confidentiality within the Adjudication system.

Are judicial settlement conferences off the record? Do the parties enjoy “without prejudice” confidentiality? Do settlement conferences fall within the rubric of litigation confidentiality? We believe this to be so. The Wigmore Rules, which define this confidentiality, are part of the law of Canada.

This said, we recognize the wisdom of holding all settlement conferences at the courthouse in Chambers on the record and with audio-taping, at a minimum, taking place. Certainly, in appropriate cases, the record may be sealed by order of a judge. We believe, however, that the public adjudication system is an open public court system. Today, only in rare occasions and without general application do delicate matters such as some family cases, some child welfare cases, some young offender cases, and other specialized, and discrete cases, enjoy the privilege of court sealed records. We see no reason to depart from this general practice. The theory of open courts has been clearly expressed by Canada’s Supreme Court. Open courts exist so the public and the press can come to the court and see their system is working and, indeed, to see how Canada’s judges are conducting their judicial functions. We believe in the bedrock principle of a free press and a fair trial in this country. This is a necessary check and balance that makes our court system work effectively and fairly. If litigants find this open system not to their liking, they should recognize that they have the private dispute resolution system, the ADR system, available to them as an option.

Confidentiality raises three fundamental issues for which there is yet no precise legal answer in Canada or the United States. Does confidentiality apply to the parties? Does confidentiality apply to the judge? Does confidentiality apply to the process? In Canada, we say, absent clear statutory privilege, that we can only answer these questions on a case by case basis. Generally, we believe mediation confidentiality, if this is agreed to, will, absent some valid reason in the public interest, be recognized. This is the right of the parties and therefore may be waived. We do not believe mediators themselves have such a right. As to an actual mediation, we are not assured that any confidentiality attaches to the process itself. The jury remains out. The general principles are known and accepted. There is a balance to be achieved in each case between recognizing the benefits to off the record communication to effect settlement and the right of a court to hear every person’s evidence.

One particular point must be stated. Regardless of where one stands on the continuum of confidentiality and legal privilege, judges are bound by the same obligations of any citizen to withdraw from the process and to declare to the appropriate authority any fact or situation where risk may occur to a party or to a child. The Tarasoff Rule applies: these public obligations exist to protect persons from future harm. No judge should continue a settlement conference or any other JDR process when such risk or danger is ascertained on a reasonable basis.

Finally, we state the obvious. Our Canadian judges come from a diverse mosaic for this is the nature of Canada itself. Judges are people too, with all the strengths and weaknesses of we humans. Some judges will feel more comfortable adjudicating from the orthodox position of the adversarial adjudicative model. Others, trained or not, have the happy facility of being able communicators and facilitators, enjoy these people centered processes, and become excellent case managers, pretrial conference, and settlement conference judges. For them, JDR offers a unique opportunity in a challenging environment with many personal rewards for what is an extremely arduous task. Just as one size does not fit all in fitting the fuss to the form, the same is so true for judges. We entrust to our chief judges and our administrative judges the allocation of our precious judicial resources in the most appropriate way. We need outstanding JDR judges for these unique processes, and we need outstanding trial judges. There is a place for all.

Conclusion

We feel that there are numerous objectives for JDR. We emphasize that stakeholder participation in judicial dispute resolution is essential. We recognize that disputes escalate or de-escalate. They are spiral in nature despite our tendency to categorize them in a linear fashion: first, negotiate; second, mediate; and finally, adjudicate. Dispute resolution processes, be they ADR or Adjudicative ones, are fluid, are dynamic, are idiosyncratic, and demand flexibility, discovery, critical and creative thinking, as well as legal and practical knowledge of people, of conflict theories, of intervention strategies, and communication skills. We recognize the power of judicial office always exists when a judge acts as an intervener. We suggest when a judge acts as intervener, the judge creates a trust relationship with the disputants. We recognize the strengths, weaknesses and limits to judicial interventions. They are not panaceas. There is no one perfect answer, as different strategies may be appropriate in a given case. We recognize the disputants themselves have their own motivations, attitudes, cognitions, behaviours, and social environments sustaining the negotiation litigation process, and they have a right to these. Finally, we recognize that the essence of JDR is that judges must adopt a more holistic approach to their involvement as judicial interveners.

At the end of the day, we ask ourselves what kind of system do we want. We feel we can do no better than cite the principles emanating from two major studies. First “The Woolf Report” on the civil justice system in England and Wales suggests the legal system should (1) be just in the result it delivers, (2) be fair in the way it treats litigants, (3) offer appropriate procedures at reasonable cost, (4) deal with cases with reasonable speed, (5) be understandable to those who use it, (6) be responsive to the needs of those who use it, (7) provide as much certainty as the particular case admits, (8) be effective: adequately resourced and organized.

Second, The Canadian Bar Association Task Force on Systems of Civil Justice declares the Canadian vision for our civil justice system of the 21st century as one with these objectives: (1) Justice: the system should be just in the results obtained. (2) Fairness: The system should be fair and perceived to be so by - ensuring that the parties have an equal opportunity to assert or defend their rights, regardless of their resources; - giving each party an adequate opportunity to advance a case and respond to the case of the opposing party. (3) Independence: It should preserve and promote judicial independence and the independence of the bar. (4) Accountability: It should promote accountability of the courts, lawyers and legal institutions to the public. (5) Transparency: It should promote openness to the public scrutiny and encourage public participation. (6) Responsiveness: It should be responsive to the needs of the persons who use it. (7) Understandability: It should be understandable to the people who use it. (8) Accessibility: It should promote ready access to dispute resolution. (9) Affordability: It should make the justice process less costly for those who use it. (10) Timeliness: It should permit and require the determination of cases within a reasonable time after commencement. (11) Proportionality: It should provide procedures that are proportional to the matters in issue. (12) Certainty: It should promote certainty to the extent permitted by the nature of the particular case. (13) Efficiency: It should be an efficient system with adequate resources.

Our view is straightforward and simple: ADR and Adjudication systems operate as complements of each other. Neither should be considered better than nor inferior to the other, and as both systems evolve, we should constantly understand and adapt improvements in each, for the betterment of each. A judge’s mandate is clear: the judge must make the system work efficiently pro bono publica and, at the same time, bring law to every person’s door. As judges of a court control their own process, they need not await legislative change to effect such purpose. We should follow the lessons of history, answer the “wake-up call” and put the people back into the process - their process, in a uniform way, leaving the traditional adversarial model for the case of last resort. We cannot improve on the profound words of Roscoe Pound, taken from his renowned work, The Spirit of the Common Law and remind judges that their duty includes:

“The conception of law as a means towards social ends, the doctrine that law exists to secure interests, social, public and individual, requires the jurist to keep in touch with life.” (emphasis added)

All of which is respectfully submitted.

The Honourable Hugh F. Landerkin, QC
Professor Andrew Pirie
Victoria, British Columbia, Canada
December 1, 2001.

Footnotes

[1] Judge, The Provincial Court of Alberta, Family and Youth Division, and Adjunct Professor, Peace and Conflict Division, Royal Roads University, Victoria, British Columbia.

[2] Professor of Law, Faculty of Law, University of Victoria, Victoria, British Columbia.

[3] “Although still nominally “alternative”, the negotiation-based tools of ADR represents the norm of legal practice. See, e.g., Marc S. Galanter, Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 U.C.L.A. L. Rev. 4, 26-36 (1983), cited in, Developments – The Paths of Civil Litigation, (May 2000) 113 Harv. L. Rev. 1851[4] Harv. L. Rev., supra,1875.

[5] Roman Tomasic & Macolm M. Feeley, Neighbourhood Justice: An Assessment of an Emerging Idea, Longman Inc., 1982 at ix.

[6] Sander, Frank E. et al. “Judicial (Mis)Use of ADR? A Debate”, (1996) 27 U. Tol. L. Rev.  855.[7] Bowling, Daniel and David Hoffman, “Bringing Peace into the Room: The Personal Qualities of the Mediator and Their Impact on the Mediation,” 16:1 Negotiation Journal (January 2000) 5.[8] Judith S. Kaye, View From The Bench, Dispute Resolution, Summer, 1987, pg. 17.

[9] Stempfel, Jeffrey W., “Reflections on Judicial ADR and the Multi-Door Court House at Twenty: Fait Accompli, Failed Overture, of Fledgling Adulthood?”(1996) 11 Ohio State Journal on Dispute Resolution 297.[10] Lind, E. Alan and Tom R. Tyler, The Social Psychology of Procedural Justice, plenum Press, 1988.

[11] Pirie, Andrew J., Alternative Dispute Resolution Skills, Science, And the Law, Irwin Law Inc. 2000.

[12] Thomas Jefferson in a letter to Abbe Arnoud (19 July 1789); quoted from G. Carruth & E. Ehrlich, eds, The Harper Book of Quotations (New York: Harper & Row, 1988).

[13] Fisher and Brown, Getting Together: Building Relationships as We Negotiate, (Penguin books, 1989) 16.

[14] Glueck, Sheldon, “Roscoe Pound and Criminal Justice” (1964 10:4 Crime and Delinquency 347.[15] Sanchez, Victoria A., “Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today”, (1996) Ohio State Journal of Dispute Resolution 1..[16] Sanchez, supra 2.

[17] Sanchez, supra 2.

[18] Sanchez, supra 3.

[19] Sanchez, supra 3.

[20] Sanchez, supra 3.

[21] Cite Sanchez, pg. 3.

[22] Moore, Christopher W., The Mediation Process, Practical Strategies for Resolving Conflict, (San Francisco, Jossey-Bass)1996. 20.

[23] Schneider, Carl E., “Discretion, Rules, and the Law: Child Custody and The U.M.D.A.’s Best Interest of the Child Standard” (1991) Michigan Law Review 2215 at 2245.[24] Moore, Christopher W., The Mediation Process, Practical Strategies for Resolving Conflict, (Jossey-Bass, San Francisco, 1996) 21.

[25] Notestein,Wallace, The English People on the Eve of Colonization, 227 (1962). pg. 21.

[26] Tomasic and Feeley supra, x..

[27] See Thompson, D.A. Rollie, “Taking Children and Facts Seriously: Evidence Law in Child Protection Proceedings – Part 1” (1988) 7 C.J.F.L. 11, 24.[28] Thompson, supra, 26.

[29] Reference re: Section 6 of the B.C. Family Relations Act, [1982] 1 S.C.R. 62 (S.C.C.0

[30] Carter v. Brooks, (1991) 3 R.F.L. (3d) 61 (Ont.C.A.).

[31] Crime and Delinquency, supra, 355-371.

[32] Crime and Delinquency, supra 316.

[33] Crime and Delinquency, supra, 316.

[34] Warren E. Berger, Agenda for 2000 AD - A Need for Systemic Anticipation, Keynote Address at the National Conference on the Causes of Popular Dissatisfaction With the Administration of Justice (April 7th, 1976), 70F.R.D.83, 93-96 (1976; see also Warren E. Berger, Isn’t There a Better Way? 68 A.B.A. J. 274 (1982).[35] Galanter, M.,“The Emergence of the Judge as Mediator in Civil Cases” (1986) 69 Judicature 257.[36] Galanter, supra, 257

[37] Galanter, supra, 259.

[38] Galanter, supra,259, citing Nims, Pre-Trial in the United States, 25 Can. B. Rev. 702 (1947).

[39] Galanter, supra, 261.

[40] Galanter, supra, 261.

[41] Galanter, supra, 261.

[42] Galanter, supra, 261.

[43] Galanter, supra, 261.

[44] Galanter, supra, 262.

[45] For recognition by both President George Bush This is precisely the concern of Carrie Menkel-Meadows.[45] Rand President William Clinton endorsing ADR in the federal system, see Resnick, Judith, “Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication” (1995) 10 Ohio State Journal on Dispute Resolution 211, 239.[46] Cite Ohio State Journal Dispute Resolution.

[47] Resnick, supra, 261.

[48] Resnick, Judith, “Managerial Judges” (1982) 96 Harv. L. Rev. 374[49] see, generally, Menkel-Meadow, Carrie, “Pursuing Settlement in an Adversarial Culture: A Tale of Innovation C0-Opted or ‘The Law of ADR,’” (1991) 19 Fla. St. U. L. Rev. 1 and Menkel-Meadow, Carrie. “When Dispute Resolution Begets Disputes of Its Own: Conflicts Among Dispute Professionals.” (August, 1997) 44 UCLA L. Rev. 1871[50] Sabatino, Jack M. “ADR as ‘Litigation Light’: Procedural and Evidentiary Norms Embedded Within Alternative Dispute Resolution.”(1988) 47, Emery L. J., no. 4 1289.[51] Sabatino, supra, 1292.

[52] Sabatino, supra, 1292.

[53] Sabatino, supra, 1294.

[54]Menkel-Meadow, supra , 1629-30.

[55] Stempel, supra, 297.

[56] Stempel, supra, 300.

[57] Stempel, supra, 305.

[58] Stempel, supra, 305.

[59] Stempel ,supra,308.

[60] Stempel, supra, 309.

[61] Menkel-Meadow, supra, 4.

[62] Menkel-Meadow, supra, 5.

[63] Collier and Vaughan, supra, 10.

[64] For example, see Section 3(1) of the Supreme Court Act, RSBC 1996, c.443, which codifies the inherent jurisdiction of general jurisdiction courts.

[65] [1995] 4 S.C.R.725 (S.C.C.)

[66] See generally, Reference Re: Adoption Act, [1938] S.C.R. 398 (S.C.C.); Reference Re: Residential Tenancy Act, [1981] 1 S.C.R. 714 (S.C.C.); Reference Re: S. 6 of the B.C. Family Relations Act, supra.

[67] See www.provincialcourt.bc.ca

[68] See, generally, The Canadian Bar Association, Task Force on Systems of Civil Justice. Ottawa: The Association, 1996. Chapter Four: A Multi-Option Civil Justice System.

[69] S. 2.50-Case Flow Management Delay Reduction: General Principles in Conference of State Trial Judges (U.S.), Standards Relating to Court Delay Reduction, (A.B.A .1985).

[70] See generally, Canadian Bar Association, supra, Chapter Five

[71] See Alberta Rules of Court, Rule 219 for example.

[72] See Alberta Law Reform Institute Report, Civil Litigation: The Judicial Mini-Trial, August 1993.

[73] Alberta Law Reform Institute, supra.

[74] Pereplecta v. Pereplecta (1990) 103 A.R. 236 (QB) at 238 per Veit, J.

[75] Urie, W, J. Brett and S. Goldberg, Getting Disputes Resolved, San Francisco: Jossey-Bass, 1988.

[76] Fuller, Lon L., “Collective Bargaining and The Arbitrator.” (1963) Wisc. L. Rev. 1.[77] Lind and Tyler, supra, 1

[78] Lind and Tyler, supra, 9.

[79] Senge, Pete M., The Fifth Discipline, New York, Doubleday, 1994, 243.

[80] Bowling and Hoffman, supra, 14.

[81] Bowling and Hoffman, supra, 10.

[82] See for a U.S. perspective: “Protecting Confidentiality in Mediation.” (1984) 98 Harv. L. Rev. 441.[83] Slavutych v. Baker, [1976] 1 S.C.R. 254 confirms that communications will be privileged under four conditions: 1. The communication must originate in confidence that they will not be disclosed. 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. 3. The relation must be one which the opinion of the community ought to be sedulously fostered. 4. The injury that would enure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of the litigation.

[85] Edmonton Journal v. Alberta (Attorney General) [1989] 2 S.C.R. 1326

[86] Tarasoff v. The Regents of the University of California

[87] Access to Justice, Final Report, to the Lord Chancellor on the civil justice system in England and Wales, London: The Stationery Office, July 1996.

[88] Canadian Bar Association, supra.

[89] Sabatino, supra, 1341

[90] Glueck at pp.314

[91] The authors wish to express their profound thanks to Ms. Kate Blomfield, of the third year class, Faculty of Law, University of Victoria, Victoria, British Columbia, for her research excellence and able assistance in preparing this manuscript.

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