Judicial Dispute Resolution Workshop
Council of Canadian Administrative Tribunals (CTAC) is holding a 1 day workshop on Judicial Dispute Resolution (JDR) in Ottawa, June 25, 2008
Mediation has come a long way since it's first baby steps in the 1980's. We have seen the many benefits in settlement conferences and more specifically in JDR around the world. Judicial conciliation was a first in Canada.
Judicial conciliation refers to the process involving the complete and active participation of a judge at every stage of the process. The process is entirely voluntary, flexible, often informal and adaptable. Whereas private mediation advocates bypassing the traditional system all together, judicial conciliation offers an alternative route for dispute settlement, allowing the parties to revert back to the traditional system, should negotiations fail. The Tribunal Administratif du Québec (TAQ) has integrated the two systems in a harmonious coexistence. The judge participating as the conciliator will never be involved in the court hearing, should mediation fail. Judicial conciliation is generally well regarded by lawyers participating in the process since they are no strangers to negotiations or attempts at reaching out-of-court settlements. The judge, moreover, does not exercise his or her authority to dispose of a litigation but acts instead as a conciliator to help the parties clarify the contentious issues and find a solution. The administrative judge acting as conciliator will however remain guardian of public order and thus, will ascertain that the agreement reached by the parties conforms to public order before signing such agreement and by so doing giving it the effects of a decision.
It is empowering for the litigant parties to be able to leave the traditional system of a court hearing – where they would not play any direct role – with the proviso that should they fail in negotiating a settlement, the system will take them back without penalty. Not all administrative tribunals have specifically embedded in their constitutive law the possibility for judges to facilitate a mediation. However, it is understood that judges have the responsibility to try to reconcile the parties, should they consent.
The CTAC will hold a 1 day workshop aimed at developing administrative judges` skills so to qualify them as judicial mediators based on the Tribunal Administratif du Quebec's JDR model. Discussions and practical exercises will provide the participants with the opportunity to reflect on how to develop an adapted model for their own courts. A participant's manual will be handed out with various articles and materials to guide judges through the mediation process. An important document will highlight the similarities and differences between private mediation and JDR, thus allowing judges to discuss ethical issues related to JDR and the importance of adequate preparation before commencing a judicial conciliation.
Hélène de Kovachich, juge administratif, Tribunal Administratif du Québec, section des affaires immobilières.