12
[35]
Frequently, but not universally, judges adopt a managerial stance by
commanding the process they will follow (compare cl osed rat her than open
mediation). Some judges send a letter to the parties in advance to tell them what the
process will be, what materials must be provided, and what time lines must be
complied with.
[36]
A spin on the JDR process in Alberta, usually stated to be voluntarily undertaken
and non-binding (leaving the parties in control of the decision whether to settle or not)
is the phenomenon of the bi nding JDR. A binding J DR is much like an arbitration,
but without the protections afforded by arbitration statutes. The parties voluntarily
agree in advance of the JDR to be bound by the judges opinion on the issues. It has
been known, however, for a judge to require the parties to agree to be bound and give
up the right to appeal as a condition of holding a JDR.
[37]
As evidenced by the wide variety of JDR styles, judges differ considerably in
their understandings and conceptions of the JDR role. The wide variation in practice is
attributable in part to the fact that neither Rules of Court nor Practice Notes provide
for JDR. In the early days, the Chief Justice of the Court of Queens Bench i ssued a
province-wide Guideline for the conduct of judicial mini-trials, but that was prior to
the expansion of JDR styles. Currently, no standardized Guidelines govern JDR
practices in Alberta. The Edmonton judges (one of Alberta s two major population
centres) have worked on a JDR protocol but its terms are not accepted by judges in
other centres in the province. Until recently, the process for booking a JDR (and
selecting the judge who will conduct it) also differed from one centre to another.
[38]
Although no firm models of JDR have been established, certain designations
tend to describe processes that share a core of features in common. Justice J.A. Agrios
describes three such classifications in his Handbook on Judicial Dispute Resolution:
judicial mini-trials, settlement conferences and early neutral evaluation (a non-binding
judicial opinion given prior to discoveries).52 His descriptions are reproduced in
Appendix B to this paper.53
[39]
Because the rules of court and practice notes do not identify JDR, knowledge
about JDR is uneven. Lawyers who spend a lot of time litigating may be familiar with