What You Should Know About Judicial Dispute Resolution in Alberta

There are many dispute resolution processes besides trial, which may be successful in some cases if the parties can resolve. For example, it may be more cost-effective to pursue mediation or arbitration or negotiate an agreement without a formalized process if the parties can settle on issues arising from a divorce, like child support, spousal support, parenting, and property division. Under the Alberta Rules of Court, parties must first participate in some dispute resolution process before proceeding with trial in a divorce matter. Parties can participate in the Judicial Dispute Resolution Process before a judge. The judge can make orders to settle various family law matters in these sessions.

This post will discuss the Judicial Dispute Resolution (JDR) process in the Alberta family court system. This post will describe what can occur in JDR sessions and the benefits and disadvantages of pursuing this option for dispute resolution. We will also discuss the process for appealing an order arising from the JDR process. This post will provide critical takeaways for parties beginning their family law matter and seeking to understand the Judicial Dispute Resolution process as an option to fulfill mandatory dispute resolution before proceeding with trial.

What happens in a Judicial Dispute Resolution session?

Under Rule 4.16 of the Alberta Rules of Court, parties must participate in a dispute resolution process in good faith. This can include a dispute resolution process in the private sector or government sector if it involves an independent third party, or parties can participate in the Judicial Dispute Resolution process also set out in the Rules.

There are only limited situations where the court will waive the parties’ responsibility to attend a dispute resolution process before proceeding with trial. In particular, this requirement would only be waived if the court finds any of the following:

a)    The parties already attempted a dispute resolution process and it was not found to be beneficial;

b)    The nature of the claim is not one that will likely result in an agreement between the parties;

c)     There is another compelling reason why the dispute resolution process should not be attempted;

d)    Engaging in the dispute resolution process would be futile;

e)    Based on the nature of the claim, it is necessary or desirable for the court to make a decision.

A case management judge can also order that the parties participate in dispute resolution.

Parties can participate in the JDR process under Rule 4.18. This process is considered to be a part of the court adjudicative processes. Therefore, a judge will participate in the process and is considered to be acting in a judicial capacity as it is a process recognized by the Rules and is connected to court adjudicative processes.

The JDR process encourages parties to settle on matters they agree upon. All parties to the JDR process need to agree to participate. The parties can consent on various family law matters to settle issues. The matter is before a judge to produce a binding settlement.

During the process, the JDR judge is not required to strictly follow procedural rules of evidence when conducting the session, as any agreements arise from the parties’ consent.

What are the benefits of Judicial Dispute Resolution?

The Judicial Dispute Resolution process can be more cost-effective than trial, which can involve significant time and costs to prepare for, as many procedures must be followed to adjudicate the matter through trial. The JDR process can also be more efficient, and the parties may be able to resolve their divorce much sooner. With trial, it can take a long time to have the matter heard, and in some cases, trials can be adjourned for a long time if it takes significant time to produce an expert report or if a judge is not available to hear the matter.

As a judge presides over the process, the parties can have confidence that their family law issues are being heard fairly and by someone with significant experience with potential courtroom outcomes. Parties are given a unique opportunity to find common ground and settle on several family matters rather than addressing it all at trial.

JDR sessions are also confidential and without prejudice, meaning that if parties do not agree, the conversations during the sessions cannot be shared. However, parties can still be examined on whether a settlement was reached or the settlement terms if there was partial agreement. Also, if no agreement is reached, the presiding judge at the JDR cannot hear the trial.

What are the disadvantages of Judicial Dispute Resolution?

Unlike a trial, parties in the JDR process are expected to consent to matters. The JDR session is not meant to allow a judge to decide on disputed matters that require a full record of evidence to adjudicate. Sometimes, this may only be helpful if the parties agree on various matters. If the family matter is highly contentious, the JDR process may be an additional step the parties must overcome to get to a final resolution at trial.

Overall, however, it may be desirable to go through the JDR process to determine if any matters can be settled by consent.  

Can the outcome of a Judicial Dispute Resolution session be appealed?

After an agreement is reached from the JDR process, there will not be transcripts, sworn evidence, exhibits, or factual findings as would be available after a trial. Therefore, it is difficult to appeal an agreement made during the JDR process. It can also be difficult to find that there was a reviewable error by the judge because they are given wide discretion to manage the session. Also, they are not expected to conduct the JDR process with the same evidentiary and procedural requirements as in a trial.

A party needs permission to appeal a consent order from the JDR process. To obtain permission to appeal more, a party must simply be dissatisfied with the result or claim that a different outcome could have arisen after trial. Instead, a party seeking permission to appeal must show an important question of law and have a reasonable prospect of success. Also, the appeal must not prejudice the other party.

Mincher Koeman Family Lawyers Can Assist with the Judicial Dispute Resolution Process

Alternative dispute resolution, such as the judicial dispute resolution process, mediation, or arbitration, can be helpful for parties, as they can provide a more cost-effective and efficient solution than court proceedings. Before proceeding with the trial, parties must pursue a dispute resolution process, so you should speak with our family law lawyers at Mincher Koeman, who are experienced in various dispute resolution processes. Our Calgary family law lawyers are dedicated to finding the best resolution for you and your children after your divorce.

To book a consultation, please contact us online or by phone at 403-910-3000.