Judicial Mediation Policy Day

In my 26 September post here I touched on the issues raised by judicial mediation.

On 9 December the OBA presented a full day program on the topic.

Four panels covered the interprovincial landscape and experience, the Ontario experience, the private mediation landscape and perspectives, and finally the client’s perspective. Two breakout sessions considered the pros and cons, and the essential elements of good judicial mediation.

Of particular interest are the developments in Judicial Dispute Resolution in Alberta.

The Alberta new rules of court which came into force in Alberta on 1 November 2010 make JDR (or another form of dispute resolution) mandatory before trial. There has been great demand for JDR. The backlog for trials has decreased such that a civil trial of 3 weeks or less can now be accommodated within 3 – 6 months. It often takes more than 6 months to obtain a JDR date.

In Alberta JDR proceedings, judge-shopping is the rule and is encouraged so the parties will get a judge whose style, reputation and expertise will maximize the chances of settlement.

What I detected at the Policy Day was a general feeling among Ontario lawyers (certainly in the break out group I attended), that any rule change that results in an increase in the number of settlements enhances access to justice and enhances the reputation of the administration of justice.

There was talk of “facilitative mediation” (entirely interest based, without any evaluation of rights), “evaluative mediation” (which does consider rights) and binding mediation, which is set up as for a summary trial on affidavit evidence and proceeds to mediation, with the parties agreeing in advance that if there is no settlement they will accept the ruling of the JDR judge.

I heard for the first time about something called the “Trial-Like Settlement Conference”. These would be held in a courtroom off the record, in camera. The parties describe the evidence they would present at trial. They are questioned by their own counsel and opposing counsel, but not on oath. They make submissions. The judge meets the parties or counsel together or, separately “in caucus”. “At an appropriate time” the judge expresses opinions on the issues, or declines with explanation.

Those in support of JDR generally encourage counsel on both sides to see their roles as joint problem solvers. “What a novel idea”,writes Mr Justice R.A. Graesser of the Alberta |Queens Bench in a paper prepared for the Alberta Civil Trial Lawyers Association, “and how powerful that can be when both (or all) counsel are focussed on working to find solutions rather than fearlessly advancing their respective clients’ positions!” (Emphasis in the original.)

In Justice Graesser’s view, “JDR advocacy as well as mediation skills will overtake civil trial advocacy in importance, if it has not already done so.”

Does the arrival of JDR call for any change to the oath Ontario barristers take to protect their client’s rights and interests, or the LSUC motto “Let right prevail”?