In some Canadian provinces, they take what is called Judicial Dispute Resolution (JDR) very seriously. During designated periods each year, litigants can choose to have a judge help them settle their lawsuits in a confidential pre-trial conference.
In my opinion, every judicial system ought to include JDR. At present, only a few countries, such as Canada, Australia, the Netherlands, China, and the Philippines, are committed to the idea. The general hope in these countries is that JDR will reduce the court’s burden, minimize the time and cost involved in full-scale litigation, and generate agreements that leave both sides (rather than just one) happy with the outcome.
I recently spent some time with several dozen judges who specialize in JDR in Canada. In conjunction with the Canadian Judicial Institute, we organized a three-day workshop at which we screened videos of three judges resolving the same case. I was surprised to see how differently the judges approached the same dispute resolution assignment. Since they rarely have time to watch each other work, the variation in their dispute resolution strategies came as a surprise to them, too.
The JDR guidelines in Canada allow each judge to choose either a facilitative approach to helping the parties settle, emphasizing joint problem-solving and a very “hands on” mediation style, or a more evaluative approach in which the judge forecasts the probable outcome if a case proceeds to litigation and then tries to instruct the parties as to their best option. A few judges try to offer a hybrid of the two approaches. Under the JDR system in Canada, if a case fails to settle, a second judge takes over and sees the case through to completion.
The differences in the approaches selected by the JDR judges raise several interesting questions.
- Is it fair to litigants if judges in the same province adopt radically different approaches to achieving settlement?
- Do the lawyers involved understand what’s likely to happen when they sign up for JDR with a specific judge?
- What dispute resolution training is provided to the judges?
- Given that (some) judges appear to offer the same mediation services that are available from private out-of-court mediators, does it make sense for judges to be doing this work?
Judges who adopt an evaluative JDR approach assume that once the sides hear what a judge has to say, they will assess their options more realistically and be more inclined to settle. (Whether judges can actually make accurate predictions is less important than the litigants’ presumption that they can.)
If individual judges are consistent in their approach to JDR (taking an evaluative, facilitative, or hybrid approach) and lawyers are aware of these styles and can choose the JDR judge they want, the differences may be advantageous. That is, if lawyers and their clients can choose the type of JDR they think will be most helpful, that’s a good thing. If lawyers are unaware of how different judges work or have no control over the judge assigned to their case, these variations may create significant unfairness.
I am assuming, of course, that one approach is better suited to the facts of a particular case than another. For example, if settlement hinges on nonfinancial considerations (i.e., apologies, future relationships between the parties, creative swaps that go beyond what the rule of law requires, etc.), I would guess that a facilitative approach would produce optimal outcomes. If only financial considerations are at stake and the parties are not likely to have any future interactions, perhaps an evaluative approach would be most helpful. I can’t cite evidence to support these assertions. There is research, though, suggesting that what is described as a facilitative intervention may enhance perceptions of procedural fairness. This can make compliance more likely, regardless of the issues at stake. So there may be reasons to prefer a facilitative approach or a hybrid that begins with facilitative interventions.
A few of the Canadian judges I met appear to be capable of switching back and forth between the two approaches, relying on caucusing and joint problem-solving some of the time, but knowing when, how, and whether to introduce a forecast of what might happen if the case goes to litigation. If all the judges in a system can use either method and can switch back and forth, variations in the approaches to JDR used by judges won’t be an issue. But as many of the judges reported to me, they are not inclined to move from one approach to another.
Private Facilitative Mediation
I was quite surprised to learn that JDR judges in the province of Alberta are not required to receive any formal training in the techniques of dispute settlement before they take on JDR responsibilities. Such a lack of training seems like a mistake to me. Just because someone is appointed to the bench doesn’t mean that he or she is skilled in settlement techniques. At the very least, I would expect new judges to shadow the most experienced JDR judges in their district before being asked to handle JDR cases on their own.
Should judges take time away from their traditional duties (given growing caseloads) to provide judicial settlement services that might be provided equally well by private mediators? In my opinion, if JDR produces better results (in the eyes of the litigants) more quickly, it is worth the effort. If JDR judges provide the same services as private mediators and JDR takes them away from their traditional judicial activities, leading to a shortage of judges available to handle traditional cases, that’s a problem.
Optimal JDR Design
Since the approach of the judges may not match the needs of the cases, I recommend that all Canadian litigants headed to JDR first go through out-of-court facilitative mediation. If a case does not settle, then (and only then) it should go to a JDR settlement conference. This would let JDR judges use either an evaluative or a hybrid form of settlement and would reduce the overall number of cases going to JDR for facilitative assistance. This would also let JDR judges do what they are probably best able to do: use either an evaluative or a hybrid form of settlement. (How this out-of-court mediation would be financed is, of course, a separate issue. I don’t think private mediators should be expected to volunteer their services. And if the outcomes do not merit continued support for private mediators, at least the market would provide some verification one way or the other.)
If an outside mediator is involved, JDR judges trying to assist parties in pre-trial settlement should have access to a summary report from the mediator, analyzing the key sources of disagreement and indicating why a facilitative approach to mediation failed. Such reports should not go, of course, to a judge who subsequently hears the case if JDR settlement efforts fail. This is important. As has been pointed out by others, JDR or any effort at settlement facilitated by a judge makes sense only if four conditions are met:
1. Judges who try to settle a dispute are prohibited from subsequently hearing that case.
2. Parties and their lawyers are required to give written consent prior to any judicial dispute resolution effort (so any appearance of coercion can be set aside).
3. There is prior disclosure of the settlement techniques the judge intends to use.
4. Judges receive appropriate training in settlement techniques.
Evaluations of JDR
An evaluation of JDR in Alberta indicates that more than 80% of the litigants who take advantage of JDR note a high level of satisfaction with both the process and the outcome. I'm not sure, though, that most litigants know what they are missing. JDR participants might be happy because they avoided the discomfort and the cost of a trial, not because they achieved an ideal outcome. I would like to see an assessment of JDR that looks closely at the potential “joint gains” the parties may have left on the table and contrasts this with the short-term satisfaction (or happiness) levels of JDR participants. This could be done by asking independent analysts to take agreements that have been reached and interview (privately and confidentially) both sides to explore other outcomes they might have been willing to accept that would have been even better for both sides. I would also like to know more about the 20% of JDR participants who are not satisfied. What might be done to address their concerns? Detailed face-to-face interviews immediately after cases have concluded would probably reveal more than mailed surveys that don’t reach litigants until some weeks or months after cases have concluded.
Judicial systems that don’t have any form of court-annexed mediation or pre-trial settlement conference facilitated by a trained mediator or a judge ought to consider the potential savings associated with JDR. While no definitive data prove their claims, the judges and court administrators who are most directly involved remain convinced these options are advantageous.
The Quality of Justice
Countries, such as Canada, that offer JDR believe that it adds to the quality of justice they provide. Judges who are comfortable with (or even seek) JDR assignments believe that by helping litigants (represented by counsel) settle, they are relieving overburdened courts and generating better agreements for (certain) litigants than what the courts might otherwise decide. This is not quite the same thing as diverting cases to private mediation. Even if JDR judges do not always predict accurately what will happen if a case is subsequently decided by a judge or a jury, parties tend to believe that judges, more than private mediators, have insight into what is likely to happen. But to make this all work, court systems offering JDR should invest in dispute resolution training for new judges, private facilitative mediation for litigants seeking settlement assistance, and evaluation of the costs and benefits of allocating the time of judges to JDR.
Courts and dispute resolution systems need to adapt over time. The interests and priorities of “clients” as well as the public in general, undoubtedly change. I have a hunch that JDR, if designed and implemented properly, will enable the justice system to respond more effectively to at least a portion of its growing caseload. This assumes, though, that the system is willing to invest in adequate training of judges, careful evaluation of JDR, and all the alternative settlement procedures described in this article. Evaluation results will prompt the courts and dispute resolution systems to adapt their processes to meet the needs of the litigants and the justice system.
Lawrence E. Susskind is Ford Professor of Urban and Environmental Planning at the Massachusetts Institute of Technology, Vice-Chair of the Program on Negotiation at Harvard Law School, and a practicing mediator at the Consensus Building Institute. He can be reached at firstname.lastname@example.org.
 You can read more about the history of JDR around the world in the book authored by Tania Sourdin and Archie Zariski. See Tania Sourdin & Archie Zariski, The Multi-Tasking Judge: Comparative Judicial Dispute Resolution (2013).
 These videos along with a corresponding teaching note will soon be available through the Teaching Negotiation Resource Center (TNRC) of the Program on Negotiation at Harvard Law School. See Teaching Materials & Publications, Program on Negotiation Harvard Law School, www.PON.org (last visited Apr. 9, 2014).
 Nancy Welsh, Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value, 19 Ohio St. J. on Disp. Resol. 574 (2004).
 Judicial ethics regarding private meetings with the parties during the traditional administration of justice are clear: Private meetings with the sides should not happen. Judicial ethics regarding JDR are more opaque. As long as courts that offer JDR assume that judges who fail to promote settlement will hand off their cases to other judges to carry through to completion, worries about ex parte interaction can probably be set aside.
 John Cratsley, Judicial Ethics and Judicial Settlement Practices: Time for Two Strangers to Meet, 21 Ohio St. J. on Disp. Resol. 569 (2006).
 Justice John D. Rooke, Court of Queen’s Bench of Alberta, Improving Excellence: Evaluation of the Judicial Dispute Resolution Program in the Court of Queen’s Bench in Alberta (2009), http://www.cfcfc-fcjc.org/sites/default/files/docs/hosted/22338-improving_excellence.pdf.
 Nancy Welsh, Donna Stienstra & Bobbi McAdoo, The Application of Procedural Justice Research to Judicial Actions and Techniques in Settlement Sessions, in The Multi-Tasking Judge: Comparative Judicial Dispute Resolution 57 (2013).