Inventory of Reforms
Manitoba Judicially Assisted Dispute Resolution (JADR)
Judge mediated resolution of legal disputes in Manitoba Court of Queen’s Bench.
Court of Queen’s Bench
Court of Queen’s Bench
Judicially Assisted Dispute Resolution: Ten Years of Success
George Derwin, Report to the National Alternative Dispute Resolution Section of the Canadian Bar Association, 2008-2009
Judicially Assisted Dispute Resolution in the Manitoba Court of Queen’s Bench (Aikins, MacAulay & Thorvaldson LLP, Fall 2002). [2002 Report]
Judicially Assisted Dispute Resolution (JADR) at the Manitoba Court of Queen’s Bench has been available since 1994. Participation in JADR is voluntary and informal, subject only to the requirements that the JADR conference be requested jointly by counsel for the parties and that names of at least three members of the court be agreed upon and submitted. Attendance at a pre-conference meeting with the judge is also required to schedule a conference.
Description of Reforms:
The Manitoba Court of Queen’s Bench, unlike many other courts in Canada, has not introduced formalized mediation rules or mandatory mediation rules. In fact, the process is completely devoid of any rules. The rationale of the Manitoba courts for the process without rules is that the existing civil litigation rules created the complexities of litigation; therefore, the court rules committee did not want to create more rules to ameliorate the mischief crated by the original complex civil litigation rules.
The JADR process is not contained in the Manitoba Court of Queen’s Bench Rules. It would appear that the relative freedom from the formal process gives Manitoba’s JADR process its strength. Parties are free to fashion their own process. The parties, in conjunction with a Court of Queen’s Bench judge, set out the terms and requirements of the JADR proceedings.
One of the advantages of JADR is that the parties can choose the judge they want to mediate the matter. A list of three or four potential JADR judges is jointly prepared by counsel. Counsel may, if they want, specify order of preference. The lawyers send a joint letter to the Chief Justice or Associate Chief Justice of the Court of Queen’s Bench, advising the court of their selection and order of preference. Although any judge of the Manitoba Court of Queen’s Bench may be named as a potential JADR judge, the assignment of the JADR judge is in the discretion of the court. If the proposed judges are unavailable, due to other commitments, you may have to submit a revised list (MB ADR Report at 4-5).
JADR involves the judge meeting with the parties and their counsel in a case conference. Every case conference has a settlement component – the judge will discuss and offer various methods for dispute resolution, including early neutral evaluation and mini-trials.
Most JADR case conferences in Winnipeg occur at the Law Courts Building, but can take place outside the courthouse. Fulham says, “At some point in the process is a time for each party to discuss and contemplate settlement options, so don’t be surprised to see a JADR judge lingering in the hall outside the courtrooms in which the JADR is ongoing!” Of course, the JADR process is confidential and no public access is permitted (2002 Report).
In 2009, the Manitoba Alternative Dispute Resolution Section examined the JADR process and found that:
In reviewing Statements of Claim filed in comparison to the number of trials heard, only 2% to 3% of the claims filed actually proceed to trial. The remaining 97% to 98% of the Statements of Claim filed are settled, discontinued or abandoned. In regard to the Statements of Claim set down for trial, only 23% to 32% of the cases actually proceed to trial. For JADR cases set down, 81% to 84% of the cases proceed. The settlement rate is unknown, as the Court of Queen’s Bench does not maintain any statistics in this area. Anecdotal information would indicate that the JADR settlement rate in Manitoba is in the range of 85% to 95%, depending on the information source. Even without verifiable data, it is evident that the JADR process has been an immense success. Presently, in Manitoba, more cases are set down for JADR than for trial. Civil litigation matters are three to four times more likely to proceed to JADR than to trial (MB ADR Report at 5).
This summary was last reviewed in Aug 08, 2012