INTRODUCTION
Parties to a legal dispute want resolution. They want the legal process to help them settle their dispute, not drag it out. They don't want litigation that can seem endless and that can be financially and emotionally draining.
Alberta's new Rules of Court recognize this reality. The new Rules not only aim to give lawyers a process to resolve disputes efficiently and fairly, they require them to use that process to resolve claims.
The intent of the Rules is to provide a framework for civil disputes to be resolved more efficiently than in the past. The parties and their counsel are obligated to take ownership of the resolution of their claims and to engage and participate in honest, open, and timely communication for that purpose.
This means counsel must develop skills to effect timely and cost effective resolutions that involve greater participation of the parties throughout the legal process, and have access to tools and resources that will assist them to do so. The judiciary will be monitoring counsels' efforts to achieve this objective as the courts continue to focus upon and provide direction for increased effectiveness and efficiency in our judicial system.
This paper will discuss one of the tools counsel can employ, an independent third party facilitator who can provide an early and impartial assessment of the most efficient way to move matters ahead under the new Rules, creating a "Roadmap to Resolution".
Rule 1.2 of the Rules
This Rule reminds lawyers that the purpose and intention of the Rules of Court is to provide a means for resolution of claims within the court process, fairly, justly, and in a timely and cost-effective way.
The Rules challenge counsel to "identify the issues in dispute and facilitate the quickest means of resolving a claim at the least expense". The Rules are to be used "to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable." The rules "oblige the parties to communicate honestly, openly and in a timely way..."
PART 4 OF THE RULES:
Division 1 of Part 4 of the Rules of Court requires the parties to manage their dispute and to plan its resolution in a timely and cost-effective way. Our "litigation" system over the years has certainly faced criticism from stakeholders that it is too cumbersome, too slow, too expensive and unresponsive to their needs. The new Rules evidence an attempt to rein in that unruly horse.
The Rules are to be used to promote early, meaningful, and open discussion between counsel and the parties. Early effective dialogue is important to bring down potential barriers of communication and establish a working playing field for counsel and the parties.
Given the relatively few number of cases that reach trial and given the direction in the Rules for effective management of cases, competent counsel will spend more time using the new Rules to move a matter towards resolution in an efficient and cost effective way. Even if trial is the result, counsel and the parties can take comfort knowing that the resolution procedures employed mitigated costs and promoted a more timely determination.
WHAT TO DO?
EARLY THIRD PARTY FACILITATION AS A TOOL FOR MANAGING DISPUTES
Counsel and the parties would be wise to invest a significant amount of effort and energy at the front end of a matter mapping the direction of the dispute resolution process. A facilitator or mediator can assist parties who have travelled down the litigation road achieve settlement by bringing them together, providing impartial assessment of their positions and helping them to devise a mutually satisfactory resolution to their dispute. In the same way, involving a knowledgeable, skillful, and impartial third person at the beginning of the litigation road can assist the parties by helping them to focus on the most efficient process for managing their dispute.
Employment of a facilitator will assist and provide impetus for the parties to create and customize a framework to be followed; which will take better account of their particular circumstances and needs. Counsel may find that a meeting with a facilitator will allow for early, efficient and meaningful dialogue between parties and counsel leading to a reduction in the overall costs of the litigation and leading to a more timely conclusion. If the parties and counsel are, or can be, motivated to cooperate with each other at an early stage they will be able to agree upon their direction to a desired resolution. A facilitator can help counsel and the parties work efficiently towards the direction chosen and help chart their unique "Roadmap to Resolution".
A roadmap facilitator will be able to assist the parties and counsel to identify and focus upon the important issues that need to be addressed (not only the legal issues but consideration of important business, relationship, and other issues). The facilitator will be able to impart to the parties, in the presence of each other, the concept that they do have input into managing their dispute in addition to counsel and that they have a responsibility and a duty to do so in a practical and appropriate fashion.
The meeting among counsel, the parties, and the facilitator will have numerous additional benefits. Properly conducted, it will:
- Allow the lawyer to better advocate on behalf of the client,
- Allow for a more timely resolution of the dispute,
- Keep the parties focused on the end goal and what is important to them, and
- Allow for the building and maintenance of needed rapport between lawyers and possibly the clients.
If agreed, it may well serve as a process completed in compliance with the mandatory participation provision for a dispute resolution process set forth in Rule 4.16 (1).
"The parties have the responsibility to, in good faith, participate in a dispute resolution process ....[employing an impartial third person]."
If the parties agree to treat the meeting with the facilitator as participation in a dispute resolution process and provided they have sat down in good faith and discussed the issues and negotiated a procedure and methodology for potential of settlement, counsel may be in a position to state to the Clerk that they have met the requirement set out in 4.16. They will also be able to state that their crafting of a roadmap satisfies the requirement for a litigation plan under Part 4 of the Rules. Counsel and the parties will have devised a roadmap not only in compliance with the Rules allowing them to move from point "A" to point "B" in a practicable and suitable manner, but will also have created a roadmap to deal with anticipated bumps or detours along the way. Such focus will reduce costs and keep the parties on the route mapped.
It must be emphasized that this roadmap in no way interferes with the possibility of subsequent negotiation, mediation, JDR or trial. The destination is resolution. The roadmap's function is to provide a fluid, yet structured direction for counsel and the parties. The roadmap will clearly define the processes and consequences for diverting from the route chosen and will bring increased clarity and certainty to the process. The roadmap will have the additional benefit in setting a productive tone for how the parties and counsel will travel the road together. The aim will be NOU-turns!
DOES THIS EARLY FACILITATION COMMIT THE PARTIES TO SETTLEMENT?
No. This early negotiation focuses on how the parties will move towards resolution and the bases for a potential agreement. It is not aimed to be an agreement that defines the outcome; it is an agreement which focuses upon: the issues to be addressed and resolved, the information that will be needed by each party to enable them to come to a decision, the procedures and timing for counsel to follow, the objectives of the parties, and, all else being equal, a confirmation that the parties and counsel will in good faith work together to manage the dispute in an effective and timely manner.
The procedure envisaged obviously has similarity to case management but goes beyond that process. Here, the parties and their counsel are crafting a management agreement which meets their requirements. They are crafting an agreement which is flexible and complies with the Rules. The agreement created does not rule out trial or other court procedure.
The matter may finally be resolved at trial (or arbitration), however, given that the parties and their counsel have devised their own roadmap, there should be fewer bumps along the way. Consequently, the potential for an appropriate settlement or other improved upon form of resolution, resulting in substantial savings, increases.
Provided counsel and the parties commit to themselves and to each other that they will abide by their agreement, there will be less acrimony, less posturing, and more advocacy versus adversarial conduct. There will be meaningful "buy-in" which will allow for the parties and counsel to stay the course. What will soon be recognized, to the satisfaction of all, is that they have crafted an agreement for advocacy, fairness, and efficiency resulting from their investment as opposed to a direction from elsewhere. This is simply a process with huge potential for resolution in a timely and cost effective manner.
"ROADMAPPING" ADVANTAGES:
- Putting a face to the parties (and lawyers
- Collaboration/Transparency of Process/Openness
- Case management
- Certainty/Clarity/Control
- Early determination of issues
- Education about the court process
- Process for effective Questioning
- Lower cost
- Greater client satisfaction9.
- True and honest effort to effect the intent of the Rules
- Higher possibility for resolution at an earlier stage
- Reduction of stress on parties and lawyers
- Improved advocacy/Confidence in the court process
- Reduction of interlocutory applications
- Opportunity for counsel and their clients to be creative
- Timeliness
- Professionalism
- An improved and evolving process to deal with disputes
- An appreciation for another's perspective
HOW DOES COUNSEL IMPROVE UPON THE NEGOTIATION PROCESS?
In conjunction with a roadmap, counsel may:
- Employ appropriate resources aimed to assist in resolving matters outside of trial. These can be concepts, alternate systems, and people
- Review materials on various negotiation paths and methodology
- Participate in communication skills training
- Participate in dialogue with an open mind
- Admit that counsel may not hold all the answers
- Invest in strategies to be a better advocate
To summarize the theme of Roadmap to Resolution, counsel together with the parties (represented or unrepresented as the case may be) can, at a very early stage, consider employing an impartial third person to assist with litigation. Where appropriate, that impartial third person, who no doubt will have a mediation and legal background, will better enable the parties and counsel to craft an effective agreement meeting their goals and needs. If parties and counsel are willing to invest the time and energy up-front, that investment will lead to a quicker, less costly resolution with optimized client satisfaction.
NEXT STOP?
- Talk with other members of the Bar
- Continue the dialogue pertaining to procedures and concepts focused on improving our system
- Engage a roadmap facilitator on a file where you see potential merit
The Roadmap to Resolution is another tool for educating and satisfying clients. Satisfied clients, who have reached their chosen destination, are more likely to stay with and support counsel who have efficiently directed them to resolution.
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.
