13
its availability and how to obtain a JDR, but it remains obscure to many members of
the bar. Lawyers preparing for a pre-trial or case management conference with a judge
may not share the judges v iew of the purpose of the meeting so may not prepare
appropriately. Separate scheduling helps to distinguish the judges rol e in managing
litigation from the judges ro le in facilitating settlement.
[40]
One further note. In Canada, some jurisdictions offer JDR at the appellate court
level. Quebec is the leading example of a province that has adopted this practice.
There the process is called jud icial mediation.54 Appendix C sets out the
characteristics, as described by the Honourable J.J. Michel Robert, Chief Justice of
Quebec. Albertas Court of Appeal also offers this option.
[41]
JDRs in general, and the binding JDR in particular, invite conceptually difficult
questions about the role being performed and about the relationship between
adjudication, JDR and resolution of the dispute by the party agreement.55
3. Omnipotent judge
[42]
The next step in the evolution of JDR in Alberta is the merging of the judicial
roles of managing litigation, facilitating settlement and adjudicating disputes. This is
the height in co-option of ADR by the courts, a kind of ju dge as all things to all
people st ance.56
[43]
This role for the judge appears to be favoured by Landerkin and Pirie. They
understand JDR as embracing the non-adjudicative procedures used by judges to assist
settlements within our public justice system.57 To them, JDR would incl ude judges
acting as third party intervenors, i.e. mediators, and participating in case management,
settlement or pre-trial conferences, mini-trials and the like.58 To them, given their
references to judicial history, the modern emergence of judicial dispute resolution is
not an entirely new or surprising phenomenon.59 The non-adjudi cative tasks
supporting settlement are what underpin JDRs meaning:60
There is the case management role which includes judicial decisions on
interlocutory issues. There is the obvious facilitator or mediator role that
judges play in settlement-oriented pre-trial conferences or in chambers
meetings. There is the hybrid role of mediator/fact finder/advisor that
judges can take on in a mini-trial where parties present a summary of the
case to the judge, who may then render an advisory opinion to assist
negotiations among the principals.