35
(Paper presented to the Negotiating the Future Conference, Calgary, November 14-16, 2001)
[unpublished].
54
Alberta judges studiously avoid calling their process mediatio n because of s. 57 of the
federal Judges Act.
55
JDR practices are now the subject of much discussion among judges. At a recent judicial
education session, two judges who hold very different views on the appropriateness of
conducting binding JDRs i.e., JDRs which bind the parties to the opinion expressed by the
judge in the JDR participated in what was billed as The Great Debate. A lively discussion
followed, with a wide range of views being expressed. No common conclusion was reached
but the issues are now out in the open whereas previously individual judges seemed to know
little about the practices adopted by other judges.
56
Whereas in Alberta this appears to be a sequential development, in other jurisdictions it may
have developed as the norm, without distinction between settlement facilitation and litigation
management. As long as twenty years ago, Judith Resnick reached the conclusion that judges
had become m ediators, negotiators, and planners as well as adjudicators: Judith Resnick, ??
at 379.
57
Landerkin & Pirie, at 271.
58
Ibid.
59
Ibid.
60
Ibid., at 276. According to Landerkin and Pirie
The idea that JDR can include settlement initiatives involving a judge
during trial is supportable. If JDRs ideology is essentially about
promoting speedy and inexpensive justice, the responsibilities of a
judge sitting in the trial process could include facilitating appropriate
settlement discussions without jeopardizing litigation rights. Disputants
often settle during trial and careful help from the judge would appear
possible without the judge relinquishing the ability to still be an
adjudicator if necessary. The closer JDR activities come to the
adjudicative function, the more JDR can begin to resemble elements of
an inquisitorial system. Indeed, this may be the direction that JDR will
eventually go.
61
62
Landerkin & Pirie, at 261.
63
Landerkin & Pirie, ibid., caution that this need not be muscle mediation where a judge
unfairly pressures parties to settle, give up rights, or grudgingly compromise.
64
Ibid. at 264, citing McIvaine, The Value of Effective Pre- Trial (1961), 28 F.R.D . 162.