Chapter 4 - JDR's Response to the Weaknesses of Litigation

Summary

Apart from fighting just for the sake of it, or the questionable morality of giving priority to the rules rather than the needs of the litigants, relying on adjudication simply takes too long and costs too much. In the words of former Supreme Court of Canada Justice Estey: “Disputes, unlike wine, do not improve by aging. Many things happen to a cause and to parties in a dispute by the simple passage of time, and almost none of them are good. Delay in settlement or disposal of conflicting claims is a primary enemy of Justice and peace in the community.”

The Queen's Bench judges in Alberta agreed. They wanted to achieve better results, not just reduce court costs and delays. According to Associate Chief Justice Rooke:

To define “success” in a broader way, with reference to a pre-trial resolution of litigation, recognizes the myriad of benefits to litigants and the judicial system, in avoiding the costs and risks of an all-or-nothing outcome at trial. The benefits and purposes of—the success sought from—ADR, and JDR in particular, are many. The benefits include: “lower court caseloads;” “more accessible forums;” “reduced expenditures of time and money;” “speedy and informal settlement;” “enhanced public satisfaction with the justice system;” “tailored resolutions;” “increased satisfaction and compliance with resolutions;” “restoration of… values;” responding to “complaints about the current judicial system,” including the cost (time and money spent) to resolve the dispute; the incomprehensibility of the process (issues relating to the lack of participation of the affected parties); and the results (issues related to the imposition of a “remedy” by a “stranger” from a predetermined and limited range of win/loss or “zero-sum” options)

(Rooke 2010).

ADR began as a response to purported weaknesses of litigation and the lack of institutional alternatives for settling disputes. One of its harshest critics, Yale Professor Owen Fiss, stated that the ADR movement mistakenly assumed that settlement and reconciliation would always produce better results than litigation and adjudication (Fiss 1984).