11
continuation of the pre-trial conference, but is an event scheduled separately at the
request of the parties.47 In 1996, the CBA Task Force identified two key features of
the Alberta mini-trial: volunt ary participation (al though as early as 1993 there was
talk of a bindi ng mini-trial); and, as in the commercial mini-trial, fl exible design of
procedure tailored to the dispute48 at an advance meeting of the judge and parties (or,
more commonly, counsel on their behalf). Usually, the mini-trial is held in a
conference room at the courthouse.49 The mini-trial has been credited with having
been used succ essfully to facilitate the settlement of complex cases that would have
taken months to litigate.50
2. Facilitative judge
[33]
The judicial mini-trial initiated judges and lawyers to the idea of a judicial role
in settlement. Before long, influenced by developments in the United States and the
requirement in Alberta s pre-trial conference rule to explore settlement possibilities,
judges in Alberta s Court of Queens Bench (the trial court having comprehensive
inherent jurisdiction) began to experiment with the use of other ADR techniques.
[34]
No doubt, judges are adept in the art of persuasion at pre-trial conferences and
may exert an element of judicious coercion in the name of the management of
litigation. However, in Alberta, JDRs (as the more recent emanations of the judicial
mini-trial came to be known) have remained separately scheduled, and so distinct
from the pre-trial conference.51 Like the judicial mini-trial that preceded them, they
are an event initiated at the request of the parties who have some say in the choice of
the judge. The JDR is held in a conference room in the courthouse, the process is
relatively informal, the discussions are privileged, and no record is kept. It is in this
context that the experimentation with ADR techniques has expanded. The procedural
flexibility has led judges to develop their own individual sty les of J DR. JDR today
ranges from the tightly-structured mini-trial to a loosely-structured conference in
which a judge may mediate, meet with the parties individually (caucus), give an
opinion on the strengths and weakness of each party s case, predict the outcome at
trial, and press the parties to reach and sign of an agreement before the session is over.
The process followed by judges engaged in JDR is wide open. The judge may begin
using one ADR process, then flip to another and another, sometimes in a seemingly
random way. The judge may mediate (including caucus) after giving an opinion, or
move from mediation to an opinion and so forth.