A Judicial Dispute Resolution (often referred to as a JDR) was for a time in Alberta a mandatory confidential dispute resolution process, however, recently the Chief Justice of the Court of Queen’s Bench, due to the understaffing of judges in the Province of Alberta, and the overwhelming demand for JDRs, sent a letter temporarily suspending the mandatory JDR process for civil litigation lawsuits.
Nevertheless JDR may be entered into as a voluntary process, but unfortunately it has a very long waiting list to see a Justice of the Court of Queen’s Bench.
In a JDR the parties to the lawsuit and their lawyer meet with a judge who is a Justice of the Court of Queen’s Bench, which is the level of court you would be in to actually take the case to trial. Of course the Justice who hears the JDR will not be the trial Justice.
Written briefs are prepared in advance; a brief is a written argument outlining each side’s position with their settlement amount, these are sent to the Justice in advance so the Justice has an opportunity to read them and be prepared for the JDR.
At the JDR it typically takes the format of a mediation with the Justice acting as the mediator. Usually a JDR in a personal injury case will take one day and there will be several conference rooms set aside so the parties may discuss their positions confidentially apart from the other party and apart from the Justice.
A JDR does not look like this:
A JDR is not in a court room, rather it is in a boardroom and it will likely look like this:
If at the end of the day the mediation is not successful in that the parties cannot come to an agreed settlement the key benefit of the JDR is that both parties can hear the Justice’s objective assessment of the case, at this point the Justice having read the written briefs and listened to the parties for a full day will have an idea of what he or she would do if he or she was actually the trial Justice. This can be persuasive input to one side or the other if one side is being unrealistic about their case.
A trial Justice also has a unique insight into the assessment of risk at trial, which each party must understand, this is also very helpful input to both sides.
The downsides to a JDR currently in Alberta is the lengthy waiting list of approximately 8 months delay to get a date for a JDR in Red Deer, Alberta and a 6 month delay for a JDR in Calgary or Edmonton due to the few number of Justices in Alberta. In fact Alberta has the lowest number of Justices per capita of any province in the entire country!
The other down side is there a substantial cost to prepare detailed written briefs. If you are on a contingency fee agreement you may think that is not really a great deal of your concern as your lawyer is being paid a percentage, however, the percentage contingency fee may go up after a JDR given the additional amount of work your lawyer must put into the case for a JDR.
A third downside of a JDR is that the Justice’s opinion is based upon limited information without the procedural protections of a trial such as the rules of evidence and the ability to see and thus assess the credibility of witnesses. Once the Justice gives his or her opinion it might be difficult for the “unsuccessful party” to convince the other side to move much from what the JDR Justice’s opinion was, again based upon limited information.
Given the delay in getting into a JDR, given the costly and lengthy written briefs most Justices require, and given the fact that a Justice gives an opinion on limited information (which in our opinion is extremely problematic because the Justice simply does not have the detailed information that the parties have after the parties have worked with the case for several years) it is our preference to proceed with a private mediator which we can schedule within 6 – 8 weeks and the private mediator does not give an opinion about the merits of the case based upon incomplete information as a private mediator does not give an opinion at the end of the mediation.