16
charge of the management of the dispute from clients. In modern courts, judges take
charge of the management of the dispute from lawyers. Like so many phenomena, the
paternalism can cut two or more ways. Clients may appreciate having the problem
taken out of their hands. At times, Alberta judges perceive that lawyers may
appreciate turning the problem over to a judge for resolution. Hence, in his Handbook
on Judicial Dispute Resolution. Justice Agrios admonishes JDR judges to l et the
lawyers do the work.
[49]
Chris Guthrie observes that mediation is unlikely to be purely facilitative, as
purists say it should be, as long as lawyers serve as mediators.66 This is due to the fact
that lawyers are inherently evaluative, leading to non-neutrality. As all judges are first
lawyers, the behavioural tendency continues, and is, perhaps reinforced when the
primary function of a person instilled with the traits of a lawyer becomes judging.
D. Pulling on the Strands
[50]
ADR, once the antithesis of adjudication in the courts, is now the harbinger of
the new direction in civil justice as offered by the courts.67 But the changes do not
come without problems and concerns. The civil justice web is fraught with what have
been variously referred to as tensions, polarities68 or dialectical relations.69
[51]
In this section, I will comment on a few of the pulls and tugs on the strands of
the civil justice web relating to the evolution of ADR. As Landerkin and Pirie
comment, [t ]he essence of the debate is how can and should ADR and adjudication
work, both together and apart.
1. Relationship between ADR and the courts
[52]
Not only has ADR been instrumental in effecting change to civil justice in the
courts, but also the incorporation of ADR as a component of civil justice in the courts
is recasting the characteristics which were originally viewed as the strengths of ADR.
The relationship between ADR and the courts has been conceptualized in different
ways: competitive; complementary; and co-mingled.
a. Competitive
[53]
One point of view is to see ADR and litigation in court as competitive
approaches to dispute resolution. This perspective adheres to the grass-roots origins of