Judicial Dispute Resolution: Where Do We Go from Here?

For those that have been following this issue through this blog (see: Should Judges Mediate?, Upcoming ADR Programs of Interest) and elsewhere, the Ontario Bar Association (OBA) has issued its long awaited report on judicial dispute resolution (JDR). 

The report, authored by the OBA Judicial Mediation Taskforce and titled  A Different ‘Day in Court': The Role of the Judiciary in Facilitating Settlements, arrives after months of discussion within various OBA channels and limited public consultation. 

As stated in the "Introduction" to the report, the mandate of the Taskforce was "to explore and determine whether judicial mediation is in the public interest and if so to outline, from the perspective of lawyers, the optimal role of the judiciary in facilitating settlements."  The authors add that they do not restrict their exploration to techniques that are technically labeled “mediation” and for that reason they use the term “Judicial Dispute Resolution" or “JDR”.

The Taskforce states that JDR is already an informal part of the litigation landscape of Ontario, available through the existing pre-trial process and through arranged settlement conferences.  The Taskforce concludes that it should be formally recognized, as a part of the alternative dispute resolution options available in Ontario, through 
legislation or the Rules of Civil Procedure.  The Taskforce submits that  "[a]lthough JDR should not supplant private mediation, it should be formally recognized and made available to participants in the legal system in a consistent, appropriate, and transparent manner." The Taskforce believes that if the process of requesting JDR were more
transparent, resources that are currently being devoted to costly adjudication could be used for prevention and resolution, resulting in more savings to parties and to the court system.

News of the release of the report has moved swiftly.  The Law Times wrote a piece on the report in its June 22, 2013 edition (see: Task Force Seeks Clarity on Judicial Mediation) and QB Briefing (the Toronto Star's exclusive subscription-based blog-style service) has issued two posts on the topic (the OBA has published the two QB Briefing posts on its website, which can be viewed here).  Word is also getting out through other social networking channels, including various LinkedIn groups.

David Sterns, one of the lead authors of the report, was consulted after the report release by Law Times and QB and he's quoted as saying that JDR is not intended to replace private mediation.  He acknowledges that we have a "very vibrant private mediation bar" and while he believes there is a role for the judiciary to participate in the settlement process in Ontario, the "primary focus in Ontario should remain with private mediators that ... do a very good job of mediating the vast majority of cases."

So, where is this discussion going?  Ultimately, the government will have to wade in. QB Briefing reports that Attorney General John Gerretsen declined to comment on the report when he was asked about it outside Cabinet on July 17, 2013. He indicated he had just received the report and hadn't had a chance to read it.  However, it seems clear that the Attorney General appreciates the importance and value that mediation now plays in our justice system.  He is quoted as saying:   "I know that mediation is a much larger part of the whole judicial process now because generally speaking it leads, in many cases, to faster results and is less costly a result than the court process." 

The Taskforce recommendations appear to target a  pretrial system that is viewed as broken, flawed and largely ineffective by the Bar and litigants.  The Taskforce recommends a new pretrial regime that could offer two streams: a trial management element and a separate, distinct and transparent settlement component.  The settlement component would be voluntary and available to litigants upon request to address litigation files that are particularly challenging and complex and where private mediation has failed and the parties want to take another shot at resolution with the gravitas of a seasoned judge.  

Over the past year, I had the privilege to participate in the discussion regarding JDR as a member of the OBA's ADR Section Executive.  We discussed the issues at length and we submitted two reports to the Taskforce over the past 18 months that outline our concerns about JDR (to see our latest submission, dated May 16, 2013 click here).  Our main concerns relate to the role of the judiciary in providing a settlement-brokering function, the form that JDR would take to compliment a private mediation regime that is widely acknowledged to be working well, and the availability of resources to deliver JDR services.
   
Perhaps it is time for a serious re-think and re-modeling of our pretrial processes with a view to separating trial management from settlement discussions. But, if we're going to go down the road to formalizing JDR, I would caution that we need to be mindful of what judges are appointed, trained and paid to do (and do well) - decide cases.  Some would argue that judges should not be in the business of mediating cases, that this is best left to those that are trained and qualified to do facilitative work.  Further, some have expressed concern that allowing judges to mediate creates confusion in the public domain about the role of our judiciary.  For more on these concerns, see Judging Mediation in the December 11, 2012  edition of the Australian Lawyers Weekly.

At a recent town hall meeting sponsored by ADRIO on the subject of JDR, retired judge The Honourable Justice Gerald Day, frankly expressed concern about whether judges even had an appetite to take on a formal settlement role.  He stated that of those colleagues on the bench he had canvassed many were reticent, some not comfortable with the role in principal and others uneasy about performing a settlement function without adequate training. 

JDR may be on the horizon.  Nothing in life is static and clearly there are issues with our pretrial processes that need fixing.  However, further and meaningful public consultation is needed to determine what is needed to enhance and compliment what is already working well.  A great number of questions remain if JDR is to become a formalized part of the package of services offered by our courts.  Where will the government resources come from to provide this service?  I cannot imagine that the government will earmark new resources.  Our judges are already busy, so delivery would have to come from existing resources - and at what cost to the delivery of current limited services?  How would a JDR process work logistically in conjunction with a trial management process?  How would parties gain access to JDR?  How would JDR work in tandem with private mediation, which has been widely acknowledged to be working well and an integral part of our justice system?  These are just a few of the questions that remain unanswered.

Finally, it's worth noting that in preparing its report the Taskforce referred extensively to the successful implementation of JDR in other provinces in Canada.   In the last two years, Nova Scotia, British Columbia, Alberta and Saskatchewan4 have amended their rules of court to provide more formalized processes for judicial
involvement in non-adjudicative dispute resolution. Manitoba also has a judge-facilitated settlement
procedure in place.  Quebec’s Code of Civil Procedure provides a detailed procedure for JDR.  While B.C., Alberta and Saskatchewan have limited forms of JDR (Quebec had a program that died after the introduction of JDR), none of the provinces mentioned in the report boast the have the robust mandatory private mediation system that we have in Ontario.  If we're going to go down the path of JDR then we need something that meets Ontario's needs - perhaps something that fills a gap in our pretrial process and bolsters, supports and compliments our private mediation regime.