36
65
CM 12.6 at ??: In 1996, the CBA Task Force was informed that the success rate of mini-trials
in the Alberta Court of Queens Bench was between 80 and 90 percent, resulting in substantial
savings in sitting days. In 1999-2000, according to Alberta Justice, an estimated 75 to 80 per
cent of cases that went through the judicial dispute resolution process in the Court of Queens
Bench reached settlement at some point prior to trial: AJ AR 2000-2001, supra note ?? at 42.
66
Chris Guthrie, The Law yers Philosophical Map and the Disputants Perce ptual Map:
Impediments to Facilitate Mediation and Lawyering, (2 002-2003) 6 Harv. Negot. L. Rev.
145.
67
Landerkin and Pirie note that once ADR held connotations that traditionalists in the court
resisted, so acronyms like BDR better dispute resolution: or IDR in dependent dispute
resolution (???) were substituted . No such linguistic bridges are needed any more.
68
R. Tomasic & M. Feeley, I ntroduction, in Neighbourhood Justice: Assessment of an
Emerging Idea (New York: Longman Inc., 1982) at x, quoted in Landerkin & Pirie at 269:
... historically we have seen the pendulum of legal change swing from
poles such as formality and informality, complexity and simplicity,
professionalism and lay decision making, adversary and inquisitorial
approaches, and the poles of greater and lesser concern for
individualization. Indeed these fluctuations reflect tensions inherent in
the law itself, expressing as it does a multiplicity of conflicting and
competing goals.
69
C. Menkel-Meadow, Pursui ng Settlement in an Adversary Culture in an Adversary Culture: A
Tale of Innovation Co-opted or the Law of ADR (1991), 19 Fl. St. U.L.Rev. 1 at 129-30:
In my own view, ADR (in all its own variable forms) and adjudication,
come to effect, supplement, and challenge each other. Thus as we
encounter many dialectical relations in law (rule and discretion, common
law and statute, public and private, federal and state systems), we can
now add a dialogue and dynamic dimension between and amongst
dispute process and systems.
See also: C. Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions,
Ideologies, Paradigms, and Practices (1995) 11 Neg. J. 217; and When Dispute Resolution Begets
Disputes of Its Own: Conflicts Among Dispute Professionals (1997) 44 U. C.L.A. L. Rev. 1871.
70
C. Menkel-Meadow, ibid.
71
Landerkin & Pirie, citing Judith Resnick.
72
In ALRI RP 19, supra note ?? at 19, ALRI observed: I t is highly likely that settlements are
strongly influenced by the adversarial characteristics of the current adjudicative process rather
than a true application of negotiation or mediation. In the Rules Project consultation with the
legal community, lawyers commented that Unl ess a person is able to access the court system,
there is no reasonable assurance that she or he will get justice in a mediation the prospect of
a trial and having to accept its outcome is often the main motivation for settlement Alberta
Law Reform Institute, Report on Legal Community Consultation (Alberta Rules of Court
Project) (Edmonton: Alberta Law Reform Institute, 2002) at 4 (online: Alberta Law Reform
Institute <http://www.law.ualberta.ca/alri/>) [Legal Community Consultation Report].