What Is Judicial Dispute Resolution?
JDR is a popular method of alternative dispute resolution (ADR) in Alberta that allows the parties to a court action to attend before a judge for assistance in resolving their dispute without the confines and expense of trial. JDR provides an opportunity for parties to try and resolve or narrow the issues in dispute with the assistance of a judge who will provide insight and explore settlement in a private setting.
The JDR session is less formal than a trial or application. It is usually conducted in a conference room at the courthouse or in the judge’s chambers. Both the parties and their lawyers usually attend the JDR. It’s rare that a lawyer would attend JDR without his or her client.
JDR is a confidential process. All statements made at the JDR session and documents generated for or in the JDR process are privileged and made without prejudice, unless the parties agree otherwise.
Starting September 1, 2019, the Alberta Rules of Court will require parties to provide proof that they have participated in some form of alternative dispute resolution, such as JDR, or applied for an exemption from this requirement before setting an action down for trial.
As part of the JDR process, the judge provides insights and opinions on the parties’ positions. In most cases, the judge’s opinions are not binding on the parties, but are often used to form the basis of a settlement. However, the parties can agree to be bound by the judge’s opinion.
You can request JDR at any stage of a proceeding, but most are held after the disclosure of documents and questioning when each side is satisfied that they have all or most of the essential facts and evidence. However, there may be cases where JDR might be more beneficial before disclosure of information, such as those where the facts are undisputed, and the parties are ready to consider settlement early on.
A JDR session will only be scheduled if both of the following prerequisites have been met:
- Every party necessary to the JDR process has agreed to participate (unless there is sufficient reason for a party not to participate).
- Before the JDR is held, the parties have agreed on the rules for the process, including at least, rules respecting the following:
- the nature of the JDR process;
- the matters to be subject to the JDR process;
- the manner in which the JDR will be conducted;
- the date, location and time at which the JDR will take place;
- the role of the judge and any outcome expected of that role;
- any practice or procedure related to the JDR process, including exchange of materials;
- who will participate in the process, which must include those people with authority to agree on a resolution of the dispute; and
- any other matter appropriate to the process, parties or dispute.
Preparing for JDR
Some key steps in preparing for JDR include:
- Review this page for an overview of the process;
- Meet with your lawyer. Depending on the case, more than one meeting may be required. In the meeting with your lawyer, you should:
- review the objectives of JDR in general as well as your own objectives;
- request clarification of the procedure (if still unsure);
- review with your lawyer the costs incurred to date and your projected litigation budget;
- explore the strengths and weaknesses of the parties’ respective cases;
- review the pleadings, key documents and other evidence;
- identify potential areas for compromise and roadblocks to settlement;
- understand that the decision to settle is yours alone;
- confirm with your lawyer that you will attend the JDR and that you have the authority to settle the matter;
- discuss what the next steps will be if the matter does not settle; and
- prepare to participate in the JDR session. Some judges will ask the clients questions or want to hear statements directly from the clients themselves.
In almost all cases, both sides will exchange and provide the judge with written submissions or briefs outlining their respective positions on the issues. After meeting with your lawyer, they will prepare the JDR brief and submit it to the judge on your behalf.
What Happens at the JDR?
There is no standard procedure for JDR as the judge sets the framework. This will often be discussed at a pre-JDR meeting between your lawyer and the judge.
A typical sequence of events is as follows:
- The judge makes opening remarks regarding the process and procedure. These remarks may be intended primarily for the benefit of the clients.
- The plaintiff may be given an opportunity to make an opening statement.
- The plaintiff’s lawyer makes oral submissions that summarize the position outlined in the plaintiff’s brief and respond to the issues raised by the defendant in its brief. Some judges dispense with the lawyers’ submissions and either ask questions or begin settlement discussions.
- If plaintiff’s counsel was given an opportunity to make an opening statement, defence counsel will be given the same opportunity.
- The judge will usually pose questions to counsel and may have questions for the parties themselves. Some judges involve clients more than others. You should be prepared to participate in the JDR.
- The judge will assess the case and provide insight, guidance and, potentially, direction to assist in settling the case or narrowing the issues.
- Negotiations between the parties occur. Each party may be permitted to meet privately in order to discuss its position, strategy and plan.
- Some judges may push harder for a settlement than others.
- Depending on the success of the negotiations between the parties or whether the JDR was binding, the action settles or it does not.
- In a binding JDR, if the parties do not settle, the judge will make a binding decision.
The above sequence may not be followed in every case.
What Happens After the JDR?
What happens at the conclusion of the JDR depends on whether the action has settled, or the judge has made a binding decision.
If a Settlement is Reached at JDR
If the parties reach a settlement, the only documents that may result from the JDR are:
- An agreement prepared by the parties and any other document necessary to implement the agreement; and
- A consent order or consent judgment resulting from the process.
If a Settlement is Not Reached at JDR
If the matter does not settle at JDR, the litigation will continue to trial. You will have to meet with your lawyer to discuss next steps in preparing for trial.
All statements made and documents generated during the JDR process are confidential and privileged and cannot be used at trial, unless the parties have agreed otherwise.