Chapter 7 - Advantages and Disadvantages of JDR

Summary

We have made the case that JDR works, especially in a family law context, and will now look more generally at the pros and cons of JDR; first, as compared to litigation and then as compared to other forms of ADR.

Associate Chief Justice Rooke has written the following based on his own survey:

… 96% of the lawyers doing JDRs are repeat users, with over 80% of both lawyers and clients (the latter heavily weighted by insurance adjusters) having done more than five JDRs. Moreover, as [his research shows] 80-96% of the JDRs held were recommended by the lawyers involved, with as high as 34% being recommended by the clients themselves (again, mostly insurance adjusters)—meaning that often JDR is a logical joint choice of both the lawyers and clients in a case. Another significant measure of success of the JDR program is the willingness to recommend JDR in the future—very high at 93%

(Rooke 2010).

JDR settlement rates at above 90 percent means it works as a method of dispute resolution. That doesn't mean, however, that it is always the right approach.

Advantages

Canadian courts of Appeal point to several advantages of JDR, especially, as we have discussed, in the highly litigated area of family law:

The judicial mediation process best serves the interests of children in the sense that it can be readily expedited and offers a flexible, adaptable, informal venue where the most current information can be exchanged and discussed at ground level in reasoned, solution-oriented fashion. The bane of all parenting disputes—dysfunctional communication—can be addressed head on. Participation in high conflict mediation can be facilitated. Meaningful information can be obtained from the parents without all the filtering, editing and reframing that the preparation of court documents so often entails. Innovative outcomes can be explored with the full and active assistance of an experienced judicial intermediary.

(Canadian Court of Appeal 2016).

In The Contaminated Land Case presented in Chapter 5, the defense council considered JDR's main advantages over ADR to be the limited cost and the judge's ability to share the probable trial outcome. More, since JDR is readily available in Alberta, it was easy to take that case into Alberta's SPEC program.