News and Views Issue 4: Spring 2002
Cross Country Snapshot of Dispute Resolution
The Federal-Provincial-Territorial Working Group on Dispute Resolution: Time for a Revival!
Congratulations to the Canadian Forum on Civil Justice for asking the question “Should the Federal-Provincial-Territorial Working Group on Dispute Resolution be revived?” The answer to this excellent question should be a resounding “Yes”!
Background
The Federal-Provincial-Territorial Working Group on Dispute Resolution has, in the past, served as a forum for government dispute resolution practitioners to identify solutions to DR problems common to governments across Canada. It met regularly to share information and best practices. Agenda items from past meetings have included reviews of: court annexed mediation initiatives, the challenge of gathering hard data on DR projects, our common need to develop credible evaluation capacity, and confidentiality issues in the context of government access to information legislation.
Challenges
Unfortunately, the Working Group has not been able to sustain itself for a variety of very valid reasons, including pressures on Working Group members to focus their energies on advancing the cause of dispute resolution close to home. Two key challenges must be met if we are to revive the Working Group. First, we need to ensure the Working Group is relevant and cost effective. Second, we need to assess whether government DR practitioners have the time, energy and interest necessary to give life to a renewed Working Group.
The Future
Based on informal conversations with colleagues across the country, I am sure that government DR practitioners will take up the challenge. Readers who have suggestions on how we can meet these challenges are most welcome to contact me at david.merner@justice.gc.ca I bet that within the year we will be thanking the Canadian Forum on Civil Justice for launching the revival!
David Merner, General Counsel
Dispute Resolution Services, Department of Justice Canada
Tel. (613) 957-1235 Fax (613) 954-8030
David.Merner@justice.gc.ca
Canada
Dispute Resolution at the Federal Department of Justice:
Successes, Challenges and High Hopes
Canada’s Department of Justice created the Dispute
Resolution Services (DRS) in 1992 and gave it the mandate to serve as “the
leading centre of dispute resolution in Canada”. The team has had great successes,
faces serious challenges and has high hopes for the future. This brief summary
reviews some of those successes, challenges and hopes, concluding that the DRS
team must reach out to its federal, provincial and territorial allies if it is
ever to turn its ambitious mandate into a practical reality.
Successes and Challenges
Three of the most visible successes of the Justice DRS
team include: (1) the creation and administration of the Government of Canada’s
Dispute Resolution fund; (2) the creation of the Government of Canada shared mediators
program; and (3) the DR Award.
1. Over three years, the DR Fund has invested $6.9 million in funding to 52 Government
of Canada projects. Under the guidance of Lissa Heringer, this program seeded
and cultivated the very best dispute resolution practices and policies government-wide.
The challenge here is that future funding is very uncertain: the DRS team is currently
examining return on investment data to assess whether a case can be made to continue
the fund.
2. The Shared Mediators Program ensures that a qualified, trained pool of mediators
exists within the federal public service to assist in the resolution of workplace
conflict and harassment cases. Conceived and launched under the leadership of
Carole Whissell, its day-to-day management was transferred to the Public Service
Commission. The next key challenge for the program is to fit it into the current
major overhaul of federal public service human resources management.
3. The Dispute Resolution Award in Law Studies offers the law program in each
Canadian university an opportunity to recognise research and writing in the Dispute
Resolution field with an award of $1500. Under the supervision of Jane Hansen,
the DR Award represents an important source of support for research and writing
in the field of Dispute Resolution, as well as a visible way of reaching out to
the next generation of lawyers by encouraging their interest in Dispute Resolution.
The winning papers can be read, full text, at cfcj-fcjc.org/clearinghouse/drpapers-en.php.
The challenge for this program again relates to ongoing funding, particularly
in the context of shifting federal government spending priorities following September 11.
High Hopes
The DRS team at the Department of Justice has identified
several critical priorities for the coming years. We have high hopes that we can
help improve communications and information sharing with our key allies, both
within the Government of Canada and beyond. Enormous potential exists for governments
at the federal, provincial and territorial level to avoid re-inventing wheels
in our respective DR endeavours. Through the use of a variety of tools, from simple
e-mail consultations, to videoconferencing, to a shared web site, we hope public
servants from across Canada who are active in dispute resolution will be able
to advance our common cause in new, exciting and effective ways. I encourage all
who are interested in participating in this initiative to contact me at (613) 957-1235.
For More Information
Contact David Merner, General Counsel
Dispute Resolution Services, Department of Justice Canada
Tel. (613) 957-1235 Fax (613) 954-8030
British Columbia
B.C. Ministry of the Attorney General – Dispute
Resolution Office
The Ministry of the Attorney General opened the Dispute
Resolution Office (DRO) in December 1996. The primary focus of the DRO is to support
the use of alternative dispute resolution processes in the civil justice system
and in government. Some of the programs and initiatives established by the DRO
include:
Notice to Mediate Process
The Notice to Mediate process allows any party involved
in a Supreme Court action to compel all other parties to participate in a mediation
session. The process was originally introduced with respect to motor vehicle actions
and residential construction actions. On the basis of its success in these areas,
it has expanded to cover most civil, non-family cases in the BC Supreme Court.
Court Mediation Program
The Small Claims Court Mediation Program has three objectives:
to provide training and experience for mediators; to make mediation services available
to small claims litigants at no cost; and to relieve backlog pressure on the Small
Claims Court. Cases are referred to mediation on both a voluntary and mandatory
basis. The Program is meeting all of its objectives.
British Columbia Mediator Roster Society
The Society administers a roster of trained and experienced
mediators who meet admission qualifications and subscribe to a Code of Conduct.
The Roster is accessible to the public by telephone and on the Internet.
Mandatory Referral to Parenting After Separation (PAS)
Sessions
PAS sessions provide separating parents with information
about the effects of separation on children and adults, available dispute resolution
options, and child support guidelines. PAS sessions are mandatory for most parties
in 8 of the largest Provincial Court registries.
Family Relations Act Caseflow Management Project (“Family
Justice Registries”)
Provincial Court (Family) Rules brought into force in 1998
provide more early settlement opportunities and ensure cases are managed more
efficiently. A dispute resolution track is being tested in five Family Justice
Registries. Before parties to non-urgent cases proceed to court, they meet with
a Family Justice Counsellor to learn about available services, including mediation.
An Evaluation of the pilot is underway. Early information indicates very positive
outcomes.
Child Protection Mediation
The Child, Family and Community Service Act allows
the Ministry for Children and Families and parents to voluntarily choose mediation
to resolve child protection disputes. Mediation services are free and are delivered
by child protection mediators on contract with the Dispute Resolution Office in
17 locations around the province. A new process called a “facilitated planning
meeting” is currently being piloted in Surrey. Early response to the pilot
is very positive. A full evaluation will be conducted.
ADR in Government
The Dispute Resolution Office has worked with a number
of ministries, agencies, boards and commissions to help design dispute resolution
systems intended to divert cases from tribunal hearings by providing an opportunity
for them to settle in mediation. Other initiatives include providing dispute resolution
advice on various issues relating to First Nations, including treaty negotiations,
and developing model contract clauses and rules for the referral of disputes arising
under government contracts to mediation.
For More Information
Contact the Dispute Resolution Office, at BC’s Ministry
of the Attorney General: dro@ag.gov.bc.ca
Alberta
New Developments in Dispute Resolution in the Alberta
Courts
This update is to let you know of some changes in the programs
available in the Provincial Court and the Court of Queen’s Bench of Alberta.
Civil (Non-Family) Matters
Mediation
Mediation is available in Provincial Court (Civil Division)
in Edmonton and Calgary. Parties may request mediation or cases may be selected
for mediation. A roster of trained mediators assists parties to resolve their
cases in ways which meet their needs.
Alberta Justice is currently conducting a consultation process concerning civil
mediation in the courts. After the final stage, recommendations will be made to
the Minister of Justice. One or more pilot programs may result from these recommendations.
Judicial Dispute Resolution (“JDR”)
Judicial Dispute Resolution is available to people with
civil cases before the Court of Queen’s Bench in Edmonton and Calgary. Parties
may choose which Justice they wish to have preside over their case.
Pre-Trial Conferences in Provincial Court, Civil Division
Provincial Court judges meet with parties whose cases are
to be set for trial, to discuss their case, and express an opinion as to what
is likely to happen in a trial. The parties can negotiate a settlement, or prepare
for court, with the judge’s assistance.
Family Matters
Conflict Prevention: A Course for High Conflict Parents
Family Mediation Services will be piloting a skill based
course to help parents improve their communication skills and handling of conflicts
so they can best support and protect their children. This course is supported
by a grant from the Federal Government.
Dispute Resolution Officer
This pilot project is an initiative of senior Calgary family
law practitioners, the Court of Queen’s Bench and Alberta Justice. A roster
of senior counsel volunteer to meet with parents making applications to vary child
support orders, or related applications, to advise them of the effect of the Child
Support Guidelines in their case, and what a court would be likely to do in their
situation. A consent order may then be filed.
Intake and Caseflow Coordination Pilot Program in Provincial
Court, Family and Youth Division, Edmonton
All unrepresented people wishing to resolve family matters
in this court receive information on their options, necessary referrals, help
to prepare for court, and in most cases, help to negotiate with the other party
to see if they can agree on what they need to do. Cases which require immediate
attention by the court are directed to court as quickly as possible, often the
same day.
Judicial Dispute Resolution (“JDR”)
Judicial Dispute Resolution is available to people with
family cases before the Court of Queen’s Bench in Edmonton and Calgary. Parties
may choose which Justice they wish to have preside over their case.
A one year pilot project to test a new Judicial Dispute Resolution Program in
Provincial Court (Family Division) in Edmonton was completed September 30, 2001.
Evaluation showed the pilot project to be a success, and the service well received
by parties and counsel. JDR in the Provincial Court (Family Division) is also
available in Calgary, Lethbridge and Medicine Hat.
Mediation
People with family law cases involving custody, access,
guardianship or child welfare issues before the Court of Queen’s Bench or
the Provincial Court, who qualify, may go to mediation to resolve their disputes,
free of charge.
Parental Conflict Resolution
Practice Note 7 to the Alberta Rules of Court provides
that a Justice of the Court of Queen’s Bench may refer a family for help
from a psychologist, who will advise parents on what is best for their children,
and may assist them to negotiate a custody and access agreement. Family Mediation
Services provides subsidies for this service.
Conclusion
The Court of Queen’s Bench, Provincial Court and Alberta
Justice hope to continue to improve the processes available to meet the needs
of those who come before the courts. A number of the processes discussed above
have been evaluated or will be in the near future.
For More Information
Contact Camilla Witt, QC, Court Services, Alberta Justice
9833 – 109 St., Edmonton, AB, T5K 2E8
Tel. (780) 427-4993
Saskatchewan
Dispute Resolution Developments a Saskatchewan Update
Beginning – Mediating Farmland Foreclosures
As early as 1988, the Province of Saskatchewan began creating
a legislative framework supporting the development of appropriate dispute resolution
mechanisms within the province. Mediation Services Branch was created within the
Department of Justice and The Saskatchewan Farm Security Act was introduced
mandating mediation in every legal action to foreclose on farmland in the province.
Mediation Services Branch of the Department of Justice was responsible for the
delivery of the mediation services in these cases. The success of the program
in resolving difficult situations raised awareness across the province of the
potential for mediation. This success quickly led to the Branch delivering family
law fee-for-service mediation in 1990, mediating disputes resulting from expropriations
and the provision of facilitation services for multi-party disputes.
Non-Family Civil Litigation
One of the next significant steps in the development of
appropriate dispute resolution mechanisms in Saskatchewan occurred in 1994 with
an amendment to The Saskatchewan Queen’s Bench Act, which introduced
an initial mediation session at the close of pleadings in every non-family civil
litigation action. The project commenced as a pilot at that time in two Judicial
Centres in Saskatchewan and has since been expanded as a program and is now operating
in four Judicial Centres which account for approximately 75% of all non-family
civil litigation actions commenced in the province. The Department will be conducting
an evaluation over the upcoming year to assess and analyze the impact of the program
on the litigation process in Saskatchewan, and to make improvements where appropriate.
Family Law
In family law matters, Saskatchewan’s approach has
been similar to other jurisdictions across Canada. Parent Education Sessions have
been offered on a voluntary basis for a number of years to assist families cope
with the impact of separation and divorce on themselves and on their children.
In October of 2001, a mandatory Parent Education Program was introduced on a pilot
basis in the Judicial Centres of Saskatoon and Yorkton. Collaborative dispute
resolution is encouraged through the provision of mediation in situations referred
to Mediation Services Branch by the Courts, or by Family Law Support Services’
workers who encounter appropriate cases as they conduct custody and access evaluation
reports for the courts. Support is also being provided to members of the Saskatchewan
Law Society who expressed interest in establishing a collaborative law association.
A number of lawyers have been trained in Regina, Saskatoon and Moose Jaw, and
further training is scheduled for the spring of 2002 as interest in the practice
of collaborative law continues to grow.
Criminal Justice
In Saskatchewan, the Community Services Branch of Saskatchewan
Justice is responsible for supporting community-based criminal justice programs
by assisting with community development and the community-based approach to justice.
The mission of the Branch is to collaborate with, and support communities to develop
their capacity to deliver culturally sensitive criminal justice services which
promote community-owned responses to crime, encourage family participation, meet
the needs of victims and hold offenders accountable, and foster positive change.
Community Services Branch works closely with Mediation Services Branch in the
provision of dispute resolution training, mentoring and advisory services to assist
First Nations Tribal Councils, aboriginal governments, policing agencies and community
members establish community justice programs.
For More Information
Contact K. W. Acton, Director, Mediation Services Branch
Saskatchewan Justice
E-mail: kacton@justice.gov.sk.ca
or visit www.saskjustice.gov.sk.ca
Manitoba
Manitoba Court and Government initiatives in Dispute Resolution
This is a summary of some of the Dispute Resolution initiatives
and processes available in Manitoba. They are shown for both the Court of Queen’s
Bench and processes available through the provincial government.
Court of Queen’s Bench of Manitoba
Judicially Assisted Dispute Resolution
The Court of Queen’s Bench is conducting a popular
and successful program in Judicially Assisted Dispute Resolution on an informal
basis for civil cases. Between April and December 2001, 161 JADR conferences occurred.
One QB Justice has an 85% success rate with 53 JADR cases of which 47 settled,
resulting in saving an estimated 200 days of trial time. Similar rates are being
experienced by the other judges involved.
Provincial Government Initiatives and processes
A wide range of methods are available through branches
of the Provincial government that are intended to help citizens resolve disputes
in a more cost and time effective method. Here is a selection of some of them:
Comprehensive Family Co-mediation Project
Since January 15, 2001 Family Conciliation (Manitoba Family
Services and Housing) has been offering comprehensive mediation services with
an objective of providing, as an alternative to court action, a mediation service
to individuals undergoing separation or divorce, where there are minor children
involved.
“For the Sake of the Children” program is offered to educate and focus
parents on the needs of their children in the context of divorce. It is very helpful
to all separating parents, is free of charge, and is required prior to beginning
mediation.
First Nations Family Justice Project
The First Nations Family Justice Project has as one of
its intentions to provide a peacemaking or mediation service to families and aims
to reduce the number of children entering care by offering an alternative dispute
resolution process. The project is delivered in seven northern communities under
the jurisdiction of the Awasis Agency of Northern Manitoba.
The Manitoba Farm Mediation Board
The Manitoba Farm Mediation Board was established to mediate/facilitate
agreements between farmers and creditors where financial pressures could lead
or are leading to legal action. In the last 3 years the Board has dealt with approximately
150 to 200 applications per year. Since 1993 the Board has achieved settlements
in over 80% of the cases dealt with on an annual basis (average 83%).
The Property Registry (Land Titles)
Mortgage foreclosure and realty tax sale processes are
dealt with by the Manitoba Land Titles Offices and provide fast and cost effective
remedies. Court action is not required and title changes pursuant to these processes
are determined by the District Registrar of each Land Titles Office. A mortgagee’s
costs of foreclosure can be reviewed by the District Registrar and the amount
of costs payable by the land owner to the mortgagee may be set by the District
Registrar.
Manitoba Conciliation and Mediation and Pay Equity Services
Branch
The broad goal of the Conciliation and Mediation and Pay
Equity Services Branch is to promote and maintain harmonious labour-management
relations in Manitoba.
During 2000/2001, the Branch was active in 247 grievance mediation cases, 96%
of these cases were settled. There were 213 voluntary joint applications with
a more flexible time frame under Section 129(1) of The Labour Relations Act.
90% were settled.
For More Information
Contact Barry C. Effler LLB, C Arb
Deputy Registrar General, Province of Manitoba
The Property Registry, Lower Level 405 Broadway
Winnipeg, Manitoba R3C 3L6
Tel. (204) 945-0445 Fax (204) 948-2823 beffler@gov.mb.ca
Ontario
Ontario’s Dispute Resolution Office
In the Fall of 1998, the Province of Ontario launched an
Office devoted to dispute resolution services – the Dispute Resolution
Office (“DRO”) – housed within the Ministry of the Attorney
General. Currently, functioning as part of Legal Services Division, the DRO serves
as an important central resource in the Provincial Government, dedicated to the
provision of consulting services, neutral third party services, training, and
information and referral in dispute resolution. Services are provided to ministries,
agencies, boards, and commissions throughout the Ontario Public Service (“OPS”).
The DRO is staffed by lawyers, mediators and facilitators devoted to promoting
the use of efficient methods of dispute resolution throughout the work of the
government.
The DRO has provided services to over 100 clients within both the private and
public sectors. The Office has trained over 1,000 public sector employees in a
variety of dispute resolution theory and practice topics including: mediation,
negotiation, mediation advocacy, conflict theory, consensus-building, communication
and facilitation. Consulting services provided by the DRO include designing conflict
prevention and management systems, providing advice on dispute resolution language
in government policies, contracts and legislation, and supporting internal organizations
committed to dispute resolution.
A number of ADR networks work with the DRO to support the development and expansion
of dispute resolution activities in government. The Dispute Resolution Forum,
comprising public sector employees interested in dispute resolution, has delivered
numerous educational programs devoted to topical dispute resolution practice areas
such as: mediation of sexual harassment claims; public interest negotiation; designing
government dispute resolution systems; and the conduct of fact-finding investigations.
The DRO also supports a number of exciting new Provincial initiatives. One example
of such an initiative includes Youth Justice Committees which have been established
throughout the Province. These Committees are designed to find more effective
ways of dealing with non-violent young offenders. Youth Justice Committees comprise
panels of trained community members who meet with victims, young offenders accused
of minor non-violent offences, and their parents to negotiate an appropriate way
for the offender to make amends for his or her actions. The Committees work in
partnership with the police, Crown attorneys and probation officers.
Another example of a dispute resolution project involves the use of mediation
and arbitration to resolve the terms of Resource Stewardship Agreements. In this
regard, processes are in place to resolve the terms of the Agreement between members
of the forestry industry and the resource-based tourism industry.
At present, requests for the services of the DRO continue to grow in direct response
to client satisfaction. The DRO, with the Ontario Government’s continued
support, is committed to providing its clients with quality dispute resolution
programs and services and developing strong partnerships to foster growth and
encourage innovative uses of dispute resolution in government and the dispute
resolution arena at large.
For More Information
Contact Elana Fleischmann LLB, LLM
Coordinator & Legal Counsel, Dispute Resolution Office
Ministry of the Attorney General Ontario
Tel. (416) 314-8351 Fax (416) 314-8195
Email: elana.fleischmann@jus.gov.on.ca
Quebec
Quebec Ministry of Justice– Some thoughts on Mediation
as an Alternative Dispute Resolution Method
In Quebec, mediation is a tool that is gaining increased
attention as a means of avoiding the traditional resort to the courts. Over the
past few years, the Ministry of Justice has been considering means of promoting
this alternative dispute resolution method, because it is still overlooked by
the general public except for family matters.
In family matters, a citizen who wishes to resort to mediation has the benefit
of a legislative framework provided by articles 827.2 to 827.7 of the Code
of Civil Procedure. Family mediation is not mandatory but those who use it
are entitled to six free one-hour sessions in the presence of a certified mediator,
who must belong to a professional order responsible for his or her certification.
To our knowledge, this is quite new in Canada.
The six free sessions paid by the government are often sufficient to find the
basis for a separation agreement and settle most of the issues between the spouses,
such as child custody, division of assets, child support, etc. This program is
constantly being reviewed and a lawyer appointed by the Ministry of Justice oversees
the implementation of this program and occasionally suggests some changes to the
Ministry in order to improve and upgrade the present system.
There is no mandatory system for civil and commercial mediation, nor any legislative
provisions under which it can take place. For the time being, the Minister plans
to promote this method and encourage recourse to mediation on a purely voluntary
basis. We do know that various non-governmental organizations and a number of
professions (lawyers, engineers, notaries, etc.) offer private mediation services.
An example we might mention is the case of the IMAQ, the “Institut de médiation
et d’arbitrage du Québec” [the Quebec mediation and arbitration
institute], which is to hold a symposium on civil and commercial mediation this
Spring. The Ministry has agreed to take part in the event, whose primary goal
is to promote this alternative method of resolving disputes among business people
and perhaps the public at large.
Another initiative relating to civil and commercial mediation originated in the
courts. The Superior Court of Quebec recently included in its Règles de
pratique [Rules of procedure], Chapter XIII entitled “Conférence de
règlement amiable” [dispute resolution conference]. Its main purpose
is to help the parties settle their disputes out of court.
This conference is offered on a voluntary, confidential basis and parties may
drop out at any time unless it has been made part of a settlement approved by
the court, conferring on this settlement the authority of a res judicata. Since
it is a recent initiative of the Superior Courts, we do not yet have statistics
to show whether its use is increasing, but an invitation by judges to use this
alternative means remains an interesting initiative.
2002 could therefore prove to be decisive with respect to the future of mediation
in Quebec. Experience with family mediation is encouraging and the Ministry plans
to increase the publicity it gives to this alternative method of dispute resolution
in order to increase the general public’s awareness of the numerous advantages
it provides, particularly, in savings in time and cost.
We will also follow with interest any future developments with the systems established
in other provinces, some of which appear especially promising.
For More Information
visit the Ministry of Justice website at www.justice.gouv.qc.ca
New Brunswick
New Brunswick Alternative Dispute Resolution –
Department of Justice and Office of the Attorney General
Small Claims Court:
The Small Claims Court has jurisdiction in an action for
debt or damages where the amount claimed does not exceed $6000 and in actions
for the recovery of possession of personal property where the value of the personal
property does not exceed $6000.
Senior lawyers are appointed as adjudicators by the Lieutenant-Governor in Council.
The Small Claims Court adjudicates cases in each of eight judicial districts.
For more information contact: Court Services Program Support (506) 453-4319.
Family Support Services:
These services include the Family Support Orders Service
(FSOS), the Domestic Legal Aid (DLA) program, services provided by the court social
workers (information, advice, counselling, mediation) and For the Sake of the
Children program.
The Family Support Order Service (FSOS) provides for the collection of support
payments and also the enforcement of support orders when payments are not made.
Court social workers provide information, advice, counselling and mediation services
to clients going through separation and divorce. Mediation services are provided
free of charge in the areas of custody, access and child support and some basic
and routine marital property matters. Mediation is not provided where domestic
violence is a factor; instead, victims of violence are referred to the Domestic
Legal Aid program.
For the Sake of the Children is a new parent information program that was implemented
in November 2000. An enhancement of the Domestic Legal Aid program, it is primarily
targeted at parents living separately, provides information and teaches skills
to reduce parental conflict. The program also promotes a better understanding
and use of mediation, and provides information on the roles of court officials
and on court services available in New Brunswick.
For more information contact: Court Services Program Support (506) 453-4319.
Office of the Rentalsman:
The Office of the Rentalsman operates and manages The Residential
Tenancies Act program. The Chief Rentalsman based in Fredericton and nine
other rentalsmen in six regional offices throughout the province provide advice
and guidance to landlords and tenants, perform investigations for the mediation
and arbitration of disputes and provide educational information to improve relations
between landlords and tenants. The rentalsmen also decide on disbursement of security
deposit monies in cases of dispute in relation to these funds. Services are provided
to both landlords and tenants free of charge.
For more information contact: The Office of the Chief Rentalsman (506) 453-2682.
For More Information:
Contact James Burns, Justice Research and Planning
(506) 453-6526
Nova Scotia
Nova Scotia Department of Justice – Dispute
Resolution Initiative Highlights
Family Matters
Conciliation was introduced
as part of the creation of the Supreme Court (Family Division), the new court
system implemented in the Halifax Regional Municipality and Cape Breton on April
6th, 1999. Under Rule 70, the conciliator ensures timely disclosure of financial
information; identifies and facilitates areas of possible agreement; drafts consent
orders; and where indicted, directs the matter to court where immediate action
is warranted in matters of child support and custody and access. Recent evaluation
studies, by the Policy, Planning and Research Division of the Nova Scotia Department
of Justice show that in most cases, clients have found the process to be fair
and impartial, safe, and less stressful than court. Clients indicated their ability
to make their views known, and were satisfied with the outcome in the majority
of cases.
Mediation is offered
through a Roster of private practitioners in matters relating to custody, access,
support or maintenance, and property.
Completion of the Implementation of the Family Division is proposed with the expectation
of creating one family law system and consistent services for all Nova Scotians.
Work has already begun on the implementation of some of the services in other
areas of the province.
Civil
The Nova Scotia Barristers’ Society, the Department
of Justice and members of the mediation community, with the support of the Supreme
Court of Nova Scotia, have established guidelines for a Mediation Roster. It is
expected that the Roster will be in place by June 2002.
Small Claims
ADR Atlantic (Nova Scotia) is starting a pilot mediation
internship program in the Halifax Region Small Claims Court in February 2002.
Four interns and their mentors will provide service to parties who choose mediation
as an option.
Probate
A new Probate Act came into force on October 1,
2001. Section 106 of the Act provides for rules of probate court to be made by
regulation. Regulation 74 addresses the subject of mediation in contentious probate
cases. Schedule “A” to the regulations sets out the procedures of conducting
mediations referred by regulation 74.
Restorative Justice
A Framework for Restorative Justice was released in June
1998 and is being phased in within the province of Nova Scotia. Copies of the
framework document and further information can be obtained from Pat Gorham, Restorative
Justice Coordinator at (902) 424-3306 or by emailing gorhampm@gov.ns.ca.
For More Information
Contact the NS Department of Justice website: http://www.gov.ns.ca/just/
or contact Cheryl Hebert, Consultant, Court Services Department of Justice
(902) 424-2887 or by email at hebertcl@gov.ns.ca
Prince Edward Island
Dispute Resolution Services Sponsored by the Government
of Prince Edward Island – a Summary
Family Court Services
This is a voluntary, cost-free program, open to all interested
participants. There are two family court mediators providing mediation services
in the areas of custody and child support.
Positive Parenting From Two Homes
This is a voluntary, cost-free program designed to meet
the needs of parents who are concerned about their children getting caught in
the middle of the conflict when parents are separating, divorcing and parenting
from two homes. This program is presented in two three hour sessions by trained
facilitators who give information, present videos, facilitate discussions and
answer questions. Participants learn to understand their feelings, their children’s
needs, and develop a business-like relationship with the other parent.
Maintenance Enforcement Resolution Session
On every default docket day, prior to court, many payors
in default are invited to attend a resolution session with the Director of Maintenance
Enforcement and Counsel for the Director of Maintenance Enforcement to determine
if the matter can be settled out of court. Payors can be put on a repayment schedule
or referred to the Child Support Guidelines Office if the payor has grounds for
a variation of the order/agreement.
Labour Conciliation
Pursuant to the Prince Edward Island Labour Act,
if a company and a union cannot reach a settlement regarding a collective agreement,
the Minister may appoint a conciliation officer to endeavour to bring about agreement
between the parties.
Small Claims Settlement Conferences
Before a trial date is set, a settlement conference must
be held. This is mandatory. The Prothonotary may mediate any issues being disputed
and decide on any issues that do not require evidence. The Prothonotary may make
an order in the terms agreed to by the parties, or set a trial date, if a trial
is necessary.
Centre for Conflict Resolution Studies
The Department of Extension and Summer Sessions, University
of Prince Edward Island offers professional credit courses in mediation and negotiation.
When the program started, government guaranteed a number of spots for government
employees. Government employees are encouraged to take these courses. I have been
advised that this program is supposed to be one of the most comprehensive certification
programs east of Ottawa.
For More Information
Contact M. Juanita Cudmore
Legal Secretary, Legal Services
Office of the Attorney General, Charlottetown, PEI
Tel. (902) 368-4378
Email: mjcudmore@gov.pe.ca
Newfoundland and Labrador
The province of Newfoundland and Labrador
Departments of Justice, Health, Human Resources
and Employment, and Education - in conjunction with Justice Canada has developed
several new pilot projects dealing with Family Justice issues.
Family Justice Services Western (FJSW)
A new pilot project operating out of Corner Brook, Newfoundland
gives separating parents an alternative to the court system. Family Justice Services
Western opened its doors in February 2001. FJSW provides on-site education, mediation,
and counselling services to adults and children where applications for divorce,
custody, access, child and/or spousal support have been made to Supreme or Provincial
Family Court. Services include information on family law and parenting; mediation
for custody, access, support; counselling and workshops on separation issues,
communication skills and conflict resolution; a support group for children; and
automatic re-calculation of child support. All applications to both levels of
Court are referred directly to the project before a court date is issued, and
both parties are expected to attend the initial three hour education session.
FJSW is offered by a multi-disciplinary team of professionals, under the umbrella
of Community Mental Health Initiative Inc., a grass roots community group.
Recently, a new component was added to the service to allow for automatic and
mandatory recalculation of all child support orders as of July 1, 2001 in accordance
with section 25.1 of the Divorce Act. The Province has now passed Regulations
to authorize FJSW as a “Child Support Service”. Payers have the option
of appealing to court should the recalculated amount be disputed.
Family Justice Services Central (FJSC)
This most recent pilot project serves the central region
of Newfoundland and provides an integrated approach to family justice. The project
will rely on a mediation model of early dispute resolution, multi-disciplinary
approaches, information assistance and other non-traditional alternative delivery
mechanisms. The aim is to resolve family law issues without the traditional dependence
on litigation.
A broad range of services are provided to inform all users of the Court process;
inform parties of relevant family law, available options and how to access them;
identify clients’ issues and make appropriate referrals; sensitize parents
to the impact of separation and divorce on children and teach parents to keep
the children out of the dispute; negotiate agreements in child support, custody
and access; monitor the development of this service for all users; and to build
bridges and alliances with community groups and stakeholders to ensure long term
success
Support Applications Social Worker Program
Under this program Social Workers provide information on
the Child Support Guidelines and the different options to resolve the issue of
child support. It provides the option of resolving these issues through mediation
and negotiation, thereby reducing the amount of time spent in Court or avoiding
the Court process altogether. Participation is voluntary unless ordered by the
Court. The Support Application Social Worker represents the best interest of the
children and is a neutral third party. The service is free to the public and is
available throughout the province.
“Parents Are Forever”- a parent education program
This is a supportive, educational program for parents experiencing
separation and divorce. It is offered through the Unified Family Court in St.
John’s. This 12 hour skills-building course provides information on the effects
of separation and divorce on children and teaches communication and negotiation
skills aimed at reducing parental conflict. The topics include: children’s
and parents’ experiences and children’s needs; understanding conflict,
and how children get caught in the middle; listening, verbal and non-verbal communication;
a do-it-yourself mediation 4 step model; parental plans and the legal process,
including alternatives to the Court process.
This program and 4 training videos were developed at the Unified Family Court
in St. John’s Newfoundland and Labrador and has been running for 4 years.
For More Information
Contact J B Reynolds at berkleyreynolds@mail.gov.nf.ca
Nunavut
Watch for information about Dispute Resolution Initiatives
in Canada’s newest jurisdiction in future issues of News and Views on
Civil Justice Reform.
Northwest Territories
A Summary of Dispute Resolution in the Northwest Territories –
Department of Justice, Government of the NWT
Family Law Mediation
There are currently private sector mediators doing work
in the area of family law, however, there is no certification or training offered
in the NWT. In 2001 the Department of Justice undertook research and analysis
of the current models of family law mediation programs. The Department is currently
developing a pilot project on family law mediation for the NWT.
Positive Parenting Program
The Department of Justice in cooperation with the Legal
Services Board is offering a Positive Parenting Program to encourage parents to
think about how separation and divorce decisions may affect themselves and their
children. This program started as a pilot project in Yellowknife. Plans are underway
to expand this program into regional centres.
Community Justice
Community Justice is based on two concepts, Restorative
Justice and the Teachings of Aboriginal peoples. As part of the Community Justice
Initiative, the Department of Justice provides funding and support to communities
that wish to assume more control over the administration of justice in their communities.
Through local Community Justice Committees, residents can participate in a range
of justice related activities. This includes victim offender mediation approaches
offered by the Justice Committees, and through the RCMP as part of “Family
Group Conferencing”.
Alternate Dispute Resolution Process
The Department of Justice is participating in an Alternative
Dispute resolution process with former students of Grollier Hall, the Federal
Government, and the Roman Catholic Diocese of the Mackenzie. This pilot project
is intended to address potential civil claims brought by or on behalf of individuals
who were victims of abuse while they were students at Grollier Hall. (Grollier
Hall was a student residence operated by the Catholic Church in Inuvik)
For More Information
Contact Janice Laycock, Senior Policy Advisor
Department of Justice, GNWT
Tel. (867) 873-7772
Yukon
The courts in the Yukon do not have a formal court-attached
mediation program. However, mediation services are available on a voluntary basis
to parties to an action in Small Claims Court. These mediations are done by a
Justice of the Peace who has mediation training. If mediation is unsuccessful,
or if the parties choose not to use mediation, a settlement will also be attempted
at the pre-trial conference.
At the Supreme Court, we do have one justice who has training in mediation. He
has been able to mediate a resolution to some of the civil matters that have come
before him.
We do not currently have a court-attached family mediation program. However, there
are some mediation practitioners, some of whom are lawyers, who do family mediation.
For More Information
Contact Catherine Simpson
A/Manager, Court Administration
Tel. (867) 667-5089 Fax (867) 393-6212
catherine.simpson@gov.yk.ca