2
The Chief Justices were talking about changes in the duties of judges (from resolving
disputes to developing law to deciding complex social policy questions) whereas I am
talking about changes in the processes used to resolve disputes. Nevertheless, I am
drawn to this imagery and think it apt in the context of a discussion of law reform,
alternative dispute resolution and the changing role of lawyers and judges in common
law systems of civil justice. Pull one strand in the intricately interconnected web, and
the other strands reposition themselves, sometimes in unanticipated ways.
[5]
With this imagery in focus, I will explore what I consider to be two examples of
unanticipated reshaping of the spiders web t hat have occurred when ADR has pulled
on the strands of civil justice. The first example is the evolution of ADR from a
movement whose proponents sought to resolve disputes outside the courts to a
procedure offered by judges of the court (JDR). The second example is the evolution,
in Alberta, of the concept of JDR from a structured mini-trial based on a model
developed for private use in commercial law disputes to judge as omnipotent manager
of litigation, facilitator of party agreement and trier of dispute.
[6]
I have painted my examples with broad brush strokes, and as sequential
developments. It may be closer to the truth to see the influences as contemporaneous
rather than sequential. On either analysis, the trends are apparent. M y intention is to
use these examples as jumping off poi nts for raising questions and inviting
discussion about law reform, alternative dispute resolution and the role of professional
law reform agencies in pulling strands in the civil justice web.
B. ADR Strands
[7]
Much has been written about ADR, its origins, its scope, its contribution to
dispute resolution, its potential. I make no attempt to replicate or summarize those
writings. Instead, I offer my own selective account. ADR may signify a dispute
resolution process that occurs in the private sector and is independent of the courts
litigation in court may or may not have been commenced when the private sector
process is attempted. It may embrace a dispute resolution process that is offered in a
program or service connected to the courts (court-annexed ADR), as in mandatory
mediation initiatives or court-appointed dispute resolution officers. It may embrace
dispute resolution processes alternative to traditional litigation conducted with the
assistance, or under the authority, of a judge of the court (JDR).