8
possibility of settlement or the use of extra-judicial procedures to resolve the
dispute.34 Needless to say, as a matter of practice, the height ened emphasis on the
judicial production of settlements had beg un much earlier.35 Before long (and as so
often happens), Canadian jurisdictions and, I daresay, jurisdictions elsewhere in the
English common law world, followed suit.
[25]
The historical connection may explain the tendency toward procedural
compulsion when courts become involved in ADR. The pre-trial conference opens up
the exercise of court authority to bring the parties together. Where requested, or on
their own initiative, judges now hold conferences with the litigants (pre-trial, case
management, settlement) at any stage of the litigation. The promotion of settlement is
a component of such conferences. During the conference, the judge may suggest to the
parties that they try an ADR process or the judge may use ADR techniques in an effort
to resolve the litigation by party agreement achieved then and there. Rules in some
jurisdictions specifically recognize settlement as the purpose of a conference through
separate designation as a se ttlement conference o r by making settlement the primary
purpose of a pre-trial conference.
[26]
Settl ement conference is one term used to identify a separately scheduled
meeting with a judge that has the goal of resolving the dispute, or issues in the dispute,
through agreement between parties. Other terms include ju dicial dispute resolution,
judic ial mini-trial or ear ly neutral evaluation. In the words of one judge, the
terminology is all o ver the map.36 The terms are intended to signal the use of
different ADR processes; however, the terms and practice associated with the terms
vary widely from jurisdiction to jurisdiction.
[27]
The adoption of ADR processes by judges, or the use of JDR for judic ial
dispute resolution a s it has become known in Alberta, is a fascinating development
and one which merits careful attention. The popularity of JDR is spreading in Canada
and, I daresay, in other common law jurisdictions as well. Judges offer their JDR
services at the front-end of litigation (at the close of pleadings),37 at the back-end of
litigation (in a final effort to facilitate settlement before the parties go to trial), and any
time in between. Judges offer their JDR services in trial courts having inferior
(meaning less than full) jurisdiction (courts handling, e.g., small claims, family
matters), in trial courts having sup erior (m eaning comprehensive inherent)