We are concerned about the role of the courts, particularly judges, in
guaranteeing justice. We are impressed with the success of the courts in
Canada that are using what is called judicial dispute resolution (JDR).
We also describe similar efforts in other parts of the world wherethe
court helps parties resolve their differences in a timely way, not by
deciding who is right and wrong, but by assisting the parties in
resolving their differences and mendingtheir relationships.The judges
who do this mediate, rather than adjudicate.
All judges, worldwide, have responsibility for and authority over the
procedures that are used in their courtrooms. This book describes the
ways in which a judge can facilitate problem-solving between litigants.
JDR is similar to mediation, alternative dispute resolution (ADR), as it
is sometimes called, but it is provided by a judge, not a private
mediator (as in the United States). This increases the chances of
success. A judge, unlike a private mediator, can give the parties a
definitive forecast of the likely legal outcome they can expect if their
case proceeds to trial. JDR also affords the parties substantial
assistance in working out the terms of a mutually agreeable outcome, in
the setting of the courthouse (not a lawyer's office), and in the form
of a court order signed by the judge. From what we have seen, such
outcomes are very likely to be viewed as fair by all parties. There is
no downside, because if JDR fails, the matter proceeds to trial with a
different judge who knows nothing of the parties' earlier efforts to
settle. Additionally, what has happened in Canada is that the mediating
parties, who like the help the judge is providing, can ask to turn their
voluntary JDR process into a binding procedure, where if they cannot
reach a complete agreement, they can ask their JDR judge to impose a
final decision- which they can help to craft.
This book describes how JDR has worked for several decades in multiple
provinces in Canada. We review the role of the Chief Justice in setting
up JDRs for complicated (multi-party or other complex) cases. Very
little has been written about JDR because all the records have remained
confidential. We can tell this story now because we have been given
exclusive access to the parties (including the JDR judges) and the
records in nine carefully selected cases.
Our book looks at the role judges play in ensuring justice - how that
role has changed and could continue to evolve in North America and
worldwide. The JDR process described in this book has resulted in
agreement in 80% or more of all JDR cases in Canadian courts.
Clearly, judges need to be trained as mediators to make JDR work. In
some cases (such as those in which harm to children and jurisdictional
challenges are at stake), there needs to be a trial. But in most other
cases, including criminal matters and those where restorative justice is
the goal, litigants are best served by JDR rather than formal court
proceedings. JDR has the official imprimatur of the court, as well as
the judges' direct involvement, turning informally negotiated agreements
into enforceable court orders. This book explains exactly how this
happens. With the help of our Harvard Law School students, we provide a
Teaching Appendix that summarizes our nine case studies in detail. While
we present the general lessons of the cases in the main text, the
Appendix analyzes each case from the standpoint of a variety of legal
specialties and highlights the differences between JDR and ADR.
We believe that the courts will be better able to deliver justice if
they equip judges to use JDR.
