Traditional legal resolution is based on the adversarial system, through mechanisms such as the trial process - Discuss developments such as mediation and judicial dispute resolution as an alternative to the trial process.

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UNIVERSITY OF CALGARY

DEPARTMENT OF POLITICAL SCIENCE

POLI 343

LAW POLITICS AND THE JUDICIAL PROCESS

Traditional legal resolution is based on the adversarial system, through mechanisms such as the trial process.  Discuss developments such as mediation and judicial dispute resolution as an alternative to the trial process.

Student Number:  203943

November 03, 2003


Introduction

The movement of alternative dispute resolution (ADR) has been popular across the Canadian justice system as a mechanism in searching for alternatives to the traditional litigation process in recent years.  Part of the explanation for the development of variations in dispute resolution mechanisms lies in the difficulties people experienced in the use of the available public litigation system provided through the courts of this country.  One of the most attractive features of ADR is that lawyers and their clients have available to them the freedom to tailor the particular process in resolving disputes.  Rather than being forced into the traditional litigation “one-size-fits-all structure” (Cundiff, 1993), lawyers and their clients can now choose the dispute resolution process that best suits their needs.  It gives the disputants control and a chance to participate in the dispute resolution process.  Alternative dispute resolution processes also provide disputants with a private environment within which to resolve their problems.  This is a particularly positive feature when disputes deal with family matters, or private business practices.  Finally, ADR processes encourage the disputants to voluntarily invest time and money in working together to amicably settle their differences.  Thus the parties are more likely to abide by those agreements since they took parts in formulating the solution.  This does not mean that litigation is no longer a viable option.  Although there is nothing inherently wrong with the litigation process, it may not be satisfactory to use traditional litigation to resolve all disputes.  The main goal of the ADR movement is to provide more effective dispute resolution.  Generally, these alternatives to court trials benefit the litigants who save both money and time.  It also lifts the heavy burden off the courts.  The most popular alternative dispute resolution mechanisms in the Canadian justice sustem  are mediation and judicial dispute resolution.  Many provinces have incorporated these techniques into their court system.

Mediation

Mediation has existed in one form or another for many centuries.  Today it has become the fastest growing dispute resolution technique in the ADR field.  The resolution of disputes through litigation involves the translation of a disputant’s facts into legal issues as framed by a lawyer.  That transformation process puts the disputants beyond the understanding and control of those who created it.  While the client gives the lawyer instructions to pursue the litigation, the process does not give the client control over the case.  Typically, disputants are reluctant to give up control of the resolution process to anyone, be it a jury, judge, or arbitrator.  In the process of mediation, although there is a neutral third party, because the mediator is there as a facilitator, not a decision-maker, the parties stay in control throughout the process. They decide whether to settle and on what terms. This way, those who are in the best position to decide the outcome do so. The traditional process is slow, expensive and maybe disruptive of the business organizations or to relationships.  Mediation is a fast growing dispute resolution technique for business and family matters because it changes the dynamics of the dispute.  It gives the disputants, often with the assistance of their professional advisor, to voluntarily reach their own mutually acceptable solution or settlement.  In private confidential meetings with a neutral mediator, parties will be more open in explaining their problems.  Also the emotional component underlying the conflict is the principal obstacle to settlement. Mediation is often less stressful than traditional litigations.  Once the emotional aspect has been dealt with, the pathway to resolution is open.  Mediation can begin at a very early stage in a dispute because it requires minimal investigation.  If the matter is settled, the time, energy, and expense that would otherwise have been spent on litigation can be avoided, and these savings provide additional resources for the settlement. If the case is not settled as a result of the mediation, the participants will have a better understanding of the strengths and weaknesses of their case and can focus their trial preparation more effectively and economically.  It leaves all parties involved free to return to their positions prior to entering mediation.  

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Judicial Dispute Resolution (JDR)

        Because the purpose of searching for alternatives to the traditional process is to provide different mechanisms that would suit and benefit disputants in individual cases, many other mechanisms have been developed in recent years.  Judicial dispute resolution (JDR) is different from other ADR because it involves a judge in the process.  The definition of JDR is still widely open.  It includes, though not limited to, mini-trial and settlement conference.  Mini-trial is a technique developed by the business community.  It is said to be very effective in cases where a lengthy trial is anticipated, the issues ...

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