On November 1, 2010, Alberta will see new Rules of
Court (the "Rules") come into force. The
drafters of the Rules have recognized that society has an
interest in the effective, economically efficient use of its public
resources (such as the Courts) and that settlement reduces the
demands on the Courts. As such, one of the expressly stated
intended uses of the Rules is to encourage the parties to
resolve their claims themselves, by agreement, with or without
assistance, as early in the process as practicable. Accordingly, a
significant change to the Rules is the inclusion of a
requirement that an alternative dispute resolution
("ADR") process be participated in by the parties to an
While the precise form of ADR is largely left to the parties to
decide, there are some requirements, and only certain ADR processes
will meet the requirements. ADR can involve a Court process,
including judicial dispute resolution, or can involve a private or
government process, so long as an impartial third person is
involved. This will include private mediation. However,
negotiations between the parties themselves, however extensive, and
even if done in good faith, will not satisfy the Rules if
it does not involve an impartial third person.
This requirement will have a significant effect on many actions,
as a trial date will not be assigned unless the parties certify
that an ADR process has been participated in, or the Court waives
the ADR requirement. However, a Court will only waive the ADR
requirement if the Court is satisfied of the applicability of one
of several listed criteria: ADR was done before the action was
commenced and further ADR would not be beneficial; the nature of
the claim is such that it is unlikely to result in an agreement;
there is a compelling reason why ADR should not be attempted; ADR
would be futile; or if the claim is of such a nature that a
decision by the Court is necessary or desirable. Only time will
tell how the Courts will apply this provision and how willing they
will be to waive the ADR requirement.
The ADR requirement will apply to all proceedings, both new and
existing, unless examinations for discovery have been completed
prior to November 1, 2010. While some may consider this requirement
unnecessary or unduly onerous, by requiring good faith
participation in an ADR process, it is hoped that litigation which
would otherwise drag on, or go through the expensive trial process,
can be resolved in a more efficient and expedited manner.
Regardless of your opinion, the fact is that ADR is required, so
counsel in Alberta should begin putting some thought into the most
appropriate stage at which to take part in an ADR process.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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