9
jurisdiction and, surprisingly, in appellate courts.38 In some jurisdictions, the
opportunity to use JDR is offered to the disputing parties as a voluntary choice. In
other jurisdictions, the Rules of Court permit a judge to order the parties to attend a
dispute resolution or settlement conference conducted by a judge.39 Ordinarily, a judge
who has taken part in a settlement process does not conduct the trial.
[28]
Galanter tells use that today in many instances the negotiations leading to party
agreement are e ncouraged, brokered, or actively mediated by the judge an d it is
possible to assert that t his has become a respectable, even esteemed, feature of
judicial work.40 One jurisdiction s experience with JDR that of my home
jurisdiction, Alberta provides my second example which follows under heading C.
4. Evolution in meaning of the ADR acronym
[29]
There can be no doubt that ADR has infiltrated our language and approach to
dispute resolution. Today, disputants may resolve their differences before litigation
has been commenced or while litigation is under way. Their agreement may be the
result of:41
independent initiative taken by the parties, perhaps making use of dispute
resolution processes available outside the civil justice system, in the private
sector;
advice given by counsel, who may negotiate aan agreement with counsel for
the other party or parties to the dispute, or propose the use of a settlement
process alternative to litigation;
the discussion of settlement possibilities, including the possibility of using a
process or processes other than court adjudication, at a meeting with a judge
(judicial conference);
the use, voluntary or mandatory, of a court-annexed ADR process; or
the facilitation of settlement by a judge, stepping out of the authoritative role
associated with adjudication and using methods of the sort ordinarily offered in
the private sector to assist the parties to come to an agreement.
[30]
The acronym ADR has journeyed through its own transition in meaning.
Initially, ADR signified dispute resolution alternative to the traditional means of
resolving disputes through litigation. In order to gain greater acceptance for the new
processes, some spoke of assi sted dispute resolution meaning di spute resolution