Judicial Mediation in Canada: An Inspiring Success Story
The Honourable Robert A. Graesser praised Quebec for being “the fountainhead of judicial dispute resolution in Canada.” Quebec has in fact been a leader in organizing, legitimizing and practicing judicial mediation. The “Judicial Mediation in Canada” panel attests to the influence of Quebec’s model in the practice of judicial mediation in the rest of Canada.
As reported by Justice Duncan R. Beveridge of the Nova Scotia Court of Appeal, judicial mediation in Atlantic Canada is alive and well. Judicial mediation has been practiced informally in Nova Scotia since the 1980s and was formally recognized in its 2009 Civil Procedure Rules. In Nova Scotia and in Newfoundland, judicial settlement conferences are not mandatory in civil cases. This differs from family cases, where some form of alternative dispute resolution must be attempted before the parties can proceed to a trial or hearing. The success rate of these judicial mediation conferences is estimated to be around 85% to 90% for both of these provinces. In New Brunswick, if a trial is to last longer than two days, a settlement conference becomes mandatory. In Prince Edward Island, pre-trial conferences often transform into settlement conferences, although the number of such conferences and their success rates are unknown.
Much like in Atlantic Canada, judicial dispute resolution (JDR) has been present in Alberta since the 1980s, but its practice became formalized in the 1990s and early 2000s. As described by Justice Robert A. Graesser of the Court of Queen’s Bench of Alberta, its golden age lasted from 2006 to 2014, after which it was cutback because of a lack of financial support. The JDRs range from being highly evaluative to highly facilitative, as there are 75 judges conducting them, each with a different style. Binding JDRs are popular in family cases, as they provide a fast, cost-effective and final solution that is not subject to appeal. As for the future, Judge Robert A. Graesser hopes for more resources to increase the number of JDRs to previous levels of 9 to 12 per week in each major city in Alberta.
When the Honourable Warren K. Winkler, O.Ont., Q.C., took on the job of regional senior justice of the Superior Court in Toronto, he was given the long-trial list and immediately began calling many of the parties to discuss their cases. He initially received a lot of resistance and was told to not use the word “mediation” because it was not recognized in the Rules of Civil Procedure. However, he soon began receiving complaints from the judges because they had no cases to hear, since he was experiencing a very high success rate. His expertise in judicial mediation was acquired after having concluded many class action settlement approvals, including the Hepatitis C and the Native Residential School class action cases. After listening to the stories of the class action members, he was reminded that judicial mediation is a process that does not belong to the courts, to the judges or to the lawyers, but rather to the parties themselves.
PANEL: Judicial Mediation in Canada
Chair: The Hon. Georgina Jackson, Court of Appeal for Saskatchewan; Past President, CIAJ
Speakers: The Hon. Warren K. Winkler, O.Ont., Q.C.; The Hon. Robert A. Graesser, Court of Queen’s Bench of Alberta; The Hon. Duncan R. Beveridge, Nova Scotia Court of Appeal
This report was issued by the Canadian Institute for the Administration of Justice on December 17, 2018, following an International Seminar celebrating the 20th Anniversary of Judicial Mediation. The Honourable Nicole Duval Hesler, Chief Justice of Quebec, was Honorary Chair for the event which was held in Montreal on November 22, 2018.
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