The purpose of the new Alberta Rules of Court is to fairly and justly resolve disputes in a timely and cost-effective way. These Rules for the Queen’s Bench Court are effective Nov 1, 2010 and are a complete code for the many variables in any civil action. An addition to these Rules is a deliberate mechanism to engage the parties in some alternative form of dispute resolution (ADR) prior to a full trial. In this way, the judicial system has formally incorporated the mechanisms that are already a part of the justice system in other areas.
The Rules ask the parties to a dispute to evaluate alternative dispute resolution processes before moving to a full trial. The hope is that the parties engage in one of more processes and come to a resolution that works better for them. Rule 4.16 (1) lists the various opportunities available to counsel and their parties. Option (a) is an opportunity for the parties to choose facilitation, conciliation, mediation, and/or arbitration in an attempt to settle. These processes are managed by a neutral third party, but designed and delivered through a structure best determined by the parties. This unique design allows for counsel and parties to get to the heart of the matter and engage in focused settlement discussions.
All the processes above can be designed and commenced in a time-cost effective manner, generally with 30-45 days. The purpose of these processes could include:
- Clearly identify the issues in dispute
- Determine the evidentiary material relevant to the issue and clarify important facts
- Design a case management / process system
- Provide opportunity for clients to be heard and present their interests and concerns
- Conduct settlement discussions on all or some issues.
- Conclude the case through an alternative process.
If the process used by the parties does not result in settlement, the neutral third party will confirm by report that attempts to settle were undertaken by the parties and that the case will need to continue through the Court system without further delay. It is a generally known in the ADR community that meaningful attempts to settle using facilitation or mediation results in a settlement rate of approximately 65 percent. This high settlement rate alone should be sufficient for counsel to attempt these opportunities. In fact, it is the success of these ADR processes over the past decade that precipitated the changing of the Alberta Rules of Court.
Waiver of this requirement (ADR) through the Court system will probably be more time consuming and costly than just participating in an ADR process. The waiver also does not address the real intent of the clients – that is to resolve the issues in a manner where they create their own acceptable resolution.
Mediation & Arbitration Associates of Canada (MAAOC) has a very experienced and diverse roster of ADR professionals who will effectively allow counsel to address this Court mandated process. You and your client need to deal with these new Rules, so why not chose ADR professionals with a proven track record of resolving disputes?