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ADR and the New Rules of Court

ADR and the New Rules of Court. Presentation to the CBA ADR Section Edmonton November 15, 2007  Peter J.M. Lown, QC, Director and Sandra Petersson, Research Manager Alberta Law Reform Institute. Where Are We?. Multi-year project volunteers from bench and bar

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ADR and the New Rules of Court

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  1. ADR and the New Rules of Court Presentation to the CBA ADR Section Edmonton November 15, 2007  Peter J.M. Lown, QC, Director and Sandra Petersson, Research Manager Alberta Law Reform Institute

  2. Where Are We? • Multi-year project • volunteers from bench and bar • Rules of Court Committee completing its review

  3. Work in Progress • Civil appeal rules • Consequential amendments • Education program

  4. Plain language Logical structure A Modern Approach to Drafting

  5. Logical structure • Part 1: Foundational Rules • Part 2: Parties to the Litigation • Part 3: Court Actions • Part 4: Managing Litigation • Part 5: Disclosure of Information

  6. Logical structure • Part 6: Resolving Issues and Preserving Rights • Part 7: Resolving Claims Without a Full Trial Part 8: Trial • Part 9: Judgments and Orders • Part 10: Lawyers’ Charges, Recoverable Costs of Litigation and Sanctions

  7. Logical structure • Part 11: Service of Documents • Part 12: Technical Rules • Part 13: Appeals • Part 14: Transitional Provisions, etc. • Schedules • Appendix: Definitions

  8. Plain language Logical structure Overview A Modern Approach to Drafting

  9. Overview PART 4: MANAGING LITIGATION

  10. Plain language Logical structure Overview Information notes A Modern Approach to Drafting

  11. Information Notes

  12. Plain language Logical structure Overview Information notes Hyperlinks A Modern Approach to Drafting

  13. Hyperlinks

  14. ADR Goes Mainstream • Foundational Purpose

  15. Foundational Purpose The rules are intended to • identify the real issues in dispute • encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable

  16. Foundational Purpose To achieve the purpose and intention of the rules the parties must • identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense • periodically evaluate dispute resolution process alternatives to a full trial

  17. ADR Goes Mainstream • Foundational Purpose • Clear Responsibility

  18. Clear Responsibility • The parties are responsible for managing their dispute. • The parties must consider and engage in one or more dispute resolution processes unless the court waives that requirement.

  19. Clear Responsibility The parties must identify in advance when • they will evaluate progress in identifying the real issues in dispute • they will engage in a dispute resolution process

  20. Clear Responsibility The responsibility of the parties to manage their dispute includes participation in good faith in one or more of the following dispute resolution processes • a dispute resolution process in the private or government sectors involving an impartial 3rd person • a court annexed dispute resolution process; • a judicial dispute resolution process • any program or process designated by the court for the purposes of this rule.

  21. Clear Responsibility The court may waive the responsibility to engage in ADR but only if • the nature of the claim is not one, in all the circumstances, that will or is likely to result in an agreement between the parties; • there is a compelling reason why a dispute resolution process should not be attempted by the parties; • the court considers that engaging in a dispute resolution process would be futile; • the claim is of a nature that a decision by the court is necessary or desirable.

  22. ADR Goes Mainstream • Foundational Purpose • Clear Responsibility • Early Opportunity

  23. Early Opportunities The court may, at any time, direct the parties to attend a conference with the court to consider • dispute resolution possibilities • simplification or clarification of a claim, pleading, a question

  24. ADR Goes Mainstream • Foundational Purpose • Clear Responsibility • Early Opportunity • Back End Check

  25. Back End Check The party or parties requesting a trial date must provide • satisfactory evidence that the parties have participated in at least one dispute resolution processes, or • a copy of an order waiving the dispute resolution process requirement

  26. Court Application Needed • To ask for help • For permission not to follow the Rules

  27. JDR and L.N. v. S.M. 2007 ABCA 258 • The problem • The criteria • the JDR involves a discrete number of issues • express and informed consent is obtained from the parties, and • the remaining issues in dispute at trial were not discussed at the JDR.

  28. JDR and L.N. v. S.M. • The problem • The criteria • The other problem

  29. JDR and L.N. v. S.M. • The problem • The criteria • The other problem • The proposed solution

  30. ADR and the New Rules of Court Presentation to the CBA ADR Section Edmonton November 15, 2007  Peter J.M. Lown, QC, Director and Sandra Petersson, Research Manager Alberta Law Reform Institute

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