What is JADR ?

by Sadira Garfinkel

“JADR” stands for Judicially Assisted Dispute Resolution. It is a mediation process offered by the Manitoba Court of Queen’s Bench to assist parties in the litigation process to come to a resolution without the need for a formal trial. A JADR is voluntary (meaning all parties must agree to participate) and relatively informal. The process is available for both civil matters and family proceedings.

How do parties “Opt In” to a JADR?
At any point after the close of pleadings (i.e. after the claim and defence have been filed), the parties can choose to initiate the JADR process. The process is initiated by the parties (or their counsel) jointly writing to the Associate Chief Justice of the Court of Queen’s Bench to inform the Court of their intention to make use of the process and to request that a judge be assigned to the matter.

How is a judge assigned to a JADR?
In their request to the ACJ the parties will put forward an agreed upon list of three judges from which they would like the ACJ to choose. Which judges the parties choose to request will depend on a number of things including the type of matter being heard and the parties involved. The ACJ will then assign a judge from the list put forward by the parties based on those judges’ respective schedules.

How does the JADR process work?
The process can be tailored to fit the needs of the specific matter, but generally the parties or their lawyers will first meet with the judge assigned to conduct the JADR to discuss how the process will go and what documents or materials the parties will file and book a date for the mediation itself.

Typically, the parties will prepare and file briefs outlining the facts, their legal positions and the evidence they are relying on prior to the actual mediation date. This allows the judge leading the mediation to get a feel for what the case is about and the strengths and weaknesses of the parties’ respective positions.

On the day of the mediation itself, the parties and their lawyers will usually meet with the judge assigned to their matter at the courthouse. While the mediation typically takes place in a courtroom, neither the judges nor the lawyers present wear formal court robes and the parties and the judge all sit around a table together (rather than the judge presiding from the actual bench). The judge will begin by explaining the “ground rules” for all of the parties. The judge will reiterate that the process is voluntary and any party may end their participation at any point if they do not feel a reasonable resolution can be reached. The proceedings are also held “without prejudice”, which means that the parties can be free to say anything and take certain positions regarding settlement without fear that it could be used against them in a subsequent proceeding if the matter does not resolve. An example of this would be that a party may be willing to compromise on a certain aspect of their claim for the purposes of mediation, but may not be willing to do so if the matter has to go to trial. In this example, a party’s position during mediation cannot be repeated or used against them in any way during a formal trial.

The parties, or their lawyers, will often make opening remarks to the judge to give them a brief outline of their respective positions. After that the parties will generally “caucus” meaning one party and their lawyer will move to a separate room (often another courtroom or interior room). This is done so each party can feel free to speak candidly with the judge without the other side listening in. The judge will typically move from room to room speaking with the various parties and conveying information and, hopefully, settlement offers.

During these caucus meetings the judge will often ask the various parties and their lawyers for their positions on certain points at issue, and discuss various strengths and weaknesses of each party’s case. This is an opportunity for the parties to fill the judge on in things that may have not come through in the written briefs filed beforehand, or issues that were brought out in the other party’s brief.

While the judge conducting the mediation plays a neutral role throughout the mediation often the lawyers will ask the judge to speak about how they see the case itself and identify any strengths or weaknesses. Though the judge leading a mediation is only one of many judges, and would never ultimately be the judge deciding a matter should it need to go to trial, the opportunity to hear the perspective of a judge can be a helpful tool for parties and their lawyers as they continue to weigh the risks involved in their case and their various settlement positions.

Hopefully, if the mediation is successful, the parties ultimately agree on a settlement or resolution that everyone can accept, though this often involves a fair amount of compromise on all parties’ parts. Once an agreement has been reached, they will typically all reconvene in one courtroom with the judge who will restate the settlement agreement to make sure everyone is on the same page and then the parties and their lawyers will finalize any payments or documentation required as a part of the settlement.

What happens if the parties cannot agree on a settlement?
Since the JADR process is voluntary, the judge leading the process cannot force any party to accept a settlement and sometimes the parties simply are not able to come to an agreement. If this happens, the parties can choose to continue settlement negotiations on their own after the conclusion of the JADR, or they can simply continue to move the matter through the litigation process towards a final trial.

Nothing said during the JADR, or the briefs filed as part of the JADR, can be used during the course of a formal trial. JADR therefore can be an excellent tool in many cases to attempt to seek a resolution or settlement of a claim.

Sadira Garfinkel will be moderating a panel discussion on Alternative Dispute Resolution for the Young Lawyers’ Section of the Manitoba Bar Association on May 14, 2018 between noon – 1:30 at the Law Society of Manitoba Classroom, 219 Kennedy Street, Winnipeg, Manitoba.