Introduction to the Technology

Decades ago, the internet “started the fire” of online dispute resolution (ODR) and the COVID-19 crisis poured gas on it (American Arbitration Association 2003). The expan¬sion of communication provided by the internet has created more disputes, while offering unexplored ways of resolving them. Though ODR has been criticized as a distortion of traditional face-to-face encounters, it has become widely popular in the last thirty years not as an alternative to in-person dispute resolution, but as the default setting.

Online judicial dispute resolution (OJDR) offers a blend of dispute resolution and digital justice. ODR consists of the application of information and communications technology to prevention, management and resolution of disputes. Digital justice requires an understanding of the role of law, legal processes and institutional design. New arrangements in each of these areas have enabled individuals to resolve and prevent disputes using digital technology. ODR and digital justice have a lot in common, but one difference is that ODR is commonly extended to private providers, while digital justice is offered only by judicial authorities or public officials entrusted by the law.

The growth of technology over just the last few decades is remarkable. In the words of Richard Susskind:

Susskind felt the newer technology plus never-ending human desire to resolve legal battles via ADR would lead us to a point where parties will design their own dispute resolution systems. At least this was the aim of the ODR pioneers (Susskind 2019). But are we there yet? And, if so, how did we get to the point where ODR has become one of the main options for disputing parties?

An International History and Comparisons of Models

The first example of ODR was in 1982 at Carnegie Mellon University when faculty were informed through a digital message board that an oil spill had occurred (Katsh and Rabinovich-Einy 2017).

We have made the case that JDR works, especially in a family law context, and will now look more generally at the pros and cons of JDR; first, as compared to litigation and then as compared to other forms of ADR.

Associate Chief Justice Rooke has written the following based on his own survey:

JDR settlement rates at above 90 percent means it works as a method of dispute resolution. That doesn't mean, however, that it is always the right approach.

Advantages

Canadian courts of Appeal point to several advantages of JDR, especially, as we have discussed, in the highly litigated area of family law:

In The Contaminated Land Case presented in Chapter 5, the defense council considered JDR's main advantages over ADR to be the limited cost and the judge's ability to share the probable trial outcome. More, since JDR is readily available in Alberta, it was easy to take that case into Alberta's SPEC program.

Canada's efforts to resolve and manage legal disputes have included mini-trials, pre-trial conferences, settlement conferences, as well as binding and non-binding JDR. The Court of Appeal in Quebec and the Court of Queen's Bench of Alberta initiated ADR efforts in the mid-1990s. Although there are differences among some local and provincial court practices, there is a clear commitment to move away from purely adversarial to more collaborative means of resolving legal disputants. But how did this collaborative drive emerge?

“JDR has a common legal root in both the U.S. and Canada. In the U.S., it is Rule 16 of the U.S. Federal Rules of Civil Procedure (FRCP) on pre-trial conferences, scheduling and management established in 1938. One of the purposes of a pre-trial conference in any jurisdiction is to facilitate settlement, and the statutory authorization to open up extrajudicial dispute resolution techniques comes under the umbrella of pre-trial management—or settlement conferences. Particularly, Rule 16 (a)(5) provides that the judge may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference with a purpose “facilitating settlement.” One of the most pressing questions since the emergence of settlement conferences is how much judges should be actively engaged in facilitation and what was the appropriate role judges should embrace (Menkel-Meadow 1985). As stated by Maurice Rosenberg, the pre-trial conferences derived from Rule 16 were, for some states mainly to clarify issues and improve the conditions for an eventual trial (trial orientation), whereas, for other states, the primary objective was to get rid of the trial and settle (settlement orientation). The pretrial conference “confronts the judge with so many choices as to the intensity of his participation, and does so in an atmosphere less inhibited than at the trial (Rosenberg 10-11, 1964). These choices aimed at lowering delays in case resolution, handling cases more effectively, and inviting more settlements. Encouraging judges to be actively involved in settlement discussions is not restricted to the US. In England and Wales, Rule 1(4)(2)(f) of the Civil Procedure (1993) establishes the duty to manage the cases by “helping the parties to settle the whole or part of the case” (UK Civil Procedure Rules 1998). The introduction of the Civil Procedure Rules 1998 has encouraged experimentation in negotiation settlements and court mediation projects (e.g., National Mediation Helpline and court-referred mediations).

Teaching Guide

The nine case studies that follow were prepared by students of our Harvard Law School research seminar in the Spring of 2019. Based on interviews with the key litigants, lawyers, and presiding JDR judges, they detail actual JDRs in Alberta, Canada and are are published with the permission of the parties. Names are fictional and some facts have been changed to preserve the confidentiality of the parties involved.

In a law school course on mediation or ADR, all nine cases can be used to raise important questions about the practice of mediation, particularly the role of lawyers; styles of mediation (i.e., facilitative vs. evaluative vs. transformative); the ethical obligations of the mediator; the rights of the parties; and the difficulties of evaluating outcomes. Although numerous published case studies recreate the details of mediation processes, we have found none that provide a detailed review—after the fact and from the perspectives of all the parties—of mediation as it is practiced by sitting judges. As we discussed in the book, JDR in Canada is similar in some respects to U.S. mini-trials, judicial conferences, and court-annexed private mediation, all of which were shaped by the “multi-door courthouse” idea derived from the contributions of our Harvard Law School colleague Professor Frank Sander.

The cases cover a range of civil disputes and can be used as a focal point for discussion in law school classes on torts, property, family law, environmental law, negotiation, labor law, procedural law, law and psychology, and insurance law. Table 1 indicates which cases are most relevant to various law school classes along with corresponding page numbers where the case is referenced in the book to highlight a key feature of JDR as it is practiced in Canada. It is followed by a summary of each case and the key teaching points that deserve special attention.

Case Summaries and Key Teaching Points

The Contaminated Land Case

This case involves a plaintiff who took out a mortgage to purchase a land parcel for development. Despite the obstacle of the land being contaminated, the plaintiff went to great lengths to pay off his debts to the mortgage lender, including handing over his family's country home. Nonetheless, these efforts over many years did not meet the lender's expectation regarding interest and principal repayment and resulted in several lawsuits.

Apart from fighting just for the sake of it, or the questionable morality of giving priority to the rules rather than the needs of the litigants, relying on adjudication simply takes too long and costs too much. In the words of former Supreme Court of Canada Justice Estey: “Disputes, unlike wine, do not improve by aging. Many things happen to a cause and to parties in a dispute by the simple passage of time, and almost none of them are good. Delay in settlement or disposal of conflicting claims is a primary enemy of Justice and peace in the community.”

The Queen's Bench judges in Alberta agreed. They wanted to achieve better results, not just reduce court costs and delays. According to Associate Chief Justice Rooke:

ADR began as a response to purported weaknesses of litigation and the lack of institutional alternatives for settling disputes. One of its harshest critics, Yale Professor Owen Fiss, stated that the ADR movement mistakenly assumed that settlement and reconciliation would always produce better results than litigation and adjudication (Fiss 1984).

This chapter discusses JDR's use of precedent and its occasional role in shaping an agreement, rather than providing a go-to standard as in conventional litigation. In general, we believe attorneys over-rely on precedent to justify the outcome of JDRs and in doing so, miss the entire point of getting parties together to settle their lawsuit.

History of Backing Away from Precedent

Why should JDR judges, given their legal training, ever seek to free themselves from their normal reliance on precedent? Legal precedents generally do not help to resolve judicial mediations. There is a long history supporting this view.

Modern-day arbitration can provide the best of both worlds: it allows one to remain out of the courts and to not be bound by judicial precedents, especially when the benefits of court intervention are not guaranteed. Arbitration has to be free from stare decisis because of the interests of the involved parties (American Arbitration Association 2003). In other words, reconciling the interests of the involved parties does not depend on legal warrants or entitlements, and thus there is no need for a judge or arbitrator to write a decision wrapped around legal principles, constricted by earlier court precedents. Instead, the resolution of lawsuits depends on the discovery of interests underscored by the facts of the case. This requires all parties to be open-minded about creating solutions to resolve their personal conflicts, instead of asking a judge to decide their lawsuit and provide written reasons that become a legal precedent for future use by courts and lawyers. A trained JDR judge does not use his or her juridical position to determine who is right or wrong; rather, they use it to help the parties resolve their differences in a manner consistent with procedural and substantive fairness—and that is justice (see Chapter 8). It is therefore in the interests of the parties in JDR to be open about the details of their dispute and work with the other side to invent a way of maximizing joint gains, and not be bound by what may or may not have been decided in published court cases in the past.

Introduction to Part 1

Eighteen years ago, I published Meditations of a Militant Moderate. My purpose then was to collect in one place more than three dozen of my short essays on various questions bearing on the public interest, essays that had appeared during the previous 25 years in many leading national and academic publications The earliest, a New York Times op-ed, “Rethinking Liberalism,” was written in the wake of Ronald Reagan's first election and suggested that liberals’ insights about how the natural world works were deeply inconsistent with their views on social policy dynamics. The latest were a group of 2005 essays on diverse topics. I hoped that these essays would enlighten my readers about what I considered some of the crucial issues facing American society during a quarter-century of great change.

Today, the world that prompted those essays seems distant. American society has been convulsed by wars, pandemics, presidential impeachments, economic recessions, the internet, fundamental changes in media and inter-personal communications, global environmental challenges, a narrowly-averted attempt at a coup in Washington, and polarizing changes in our political parties with an utterly transformed Republican Party absorbing and normalizing far-right elements while Democrats have been challenged by “progressive” insurgencies from the left. In mid-July 2022, the New York Times reported a nationwide poll finding that a majority of American voters across nearly all demographics and ideologies believe their system of government does not work, with 58% of those interviewed saying that our democracy needs major reforms or a complete overhaul.

These convulsions have been manifested in countless ways. Many of them were crystallized in the presidency and continuing influence of Donald Trump on many aspects of Americans life, but some changes were quite independent and remain so. The writings collected here touch on only some of these factors, of course, but they are among the most salient ones for understanding what American society has become. The remainder of this Preface, also Part 1 of the book, presents two essays written in 2022. The first explains why I continue to consider myself a “militant moderate” even—or especially—in these turbulent times. The second piece is unpublished. I present it as a moderate reaction to the literally precedent-shattering Supreme Court decision in late June 2022 overruling Roe v. Wade.

Signing up for JDR is easy; preparing for the mediation itself takes real work. Counsel and their clients need to be ready. All sides need to know what kind of briefs are required. Will the lawyers be expected to make traditional legal arguments? How will the judge start the JDR? Will the judge expect the parties to base their arguments on legal precedent? Should counsel reveal their best offer to the judge at the outset? If not, when?

The Power Pole Case provides a provisional set of answers to these questions. We describe the ways in which the judge and the parties interacted during the JDR. From there, we shift to a series of eighteen tips that can help lawyers and their clients prepare properly for JDR, drawn from our study of The Well Fire Case, The Negligent Land Transfer Case, and The Medical Malpractice Case—all three of which are also presented in the book's Appendix.

The Power Pole Case

On a spring day in the late 1990s, three individuals drove a grain feed truck on or near the Happy Valley Farm Ltd. in central Alberta. The truck was mounted with an unloading auger which, when extended, moved feed out of the truck bed through its spiral shaft. While driving underneath power lines, the still-extended auger—usually retracted during transport—collided with the lines, damaging them. Happy Valley hired a journeyman electrician to repair the damage. To access the lines, he climbed a nearby power pole that suddenly broke and fell on top of him.

As a result of the fall, he fractured his left pelvis and right elbow, and suffered major contusions and additional minor injuries requiring several surgeries and extensive physical therapy. On top of the expenses and lost income related to medical care and rehabilitation, as well as the damages associated with his pain and suffering, he alleged that his injuries inhibited his ability to perform basic household tasks, leaving him dependant on the assistance of others. Further, he claimed that the lasting effects of his injuries would make it impossible for him to fully compete with his healthy coworkers, disadvantaging him professionally and limiting his opportunities for future advancement.

While ADR is part of the legal system in a growing number of countries, there are only a few that rely on JDR by mediating judges. The best way to illustrate the special features of JDR, as well as the way it overlaps ADR but differs from litigation, is to share the details of a JDR case. Until now, that was not possible due to JDR's confidentiality mandate, which prohibits publishing accounts of the process and the parties’ reactions.

With permission from the Alberta Court of Queen's Bench, we were able to interview the judges, lawyers and parties in nine JDRs, ranging across a number of civil law cases. The names of the parties are changed, as well as a few of the facts to preserve confidentiality, but the accounts offer the first clear picture of how JDR works, how it differs from other forms of ADR (especially mediation offered by independent professional mediators), and how parties behave differently in JDR as compared to more traditional litigation procedures. The first case we will describe is The Contaminated Land Case, which appears in its entirety in Appendix 1.

Summary of The Contaminated Land Case

Two friends, Edward and David, invested in industrial land that they thought had great development potential, only to later find out that the land was contaminated. Edward sold out and David tried to keep the land and went to great lengths to pay off his debts to the mortgage lender, ultimately handing over his family's country home. Nonetheless, the lender felt it did not get back all of its interest and principal. Several lawsuits followed and the case was ultimately settled at JDR with both sides moving on, paying nothing to each other, and walking away from all their claims.

The Deal

The friends purchased the land through a newly incorporated company, 270 Incorporated (270 Inc.), in which they were equal shareholders. Each agreed to finance half of the $750,000 purchase price. Edward financed his half with a vendor-takeback loan from the seller, who was his sister. David obtained and personally guaranteed a mortgage loan from a third party, Forte Banking Corporation (Forte Banking), which had previously provided David and his wife a mortgage for their country home.

The medical procedure giving rise to this action and successful JDR was a vitrectomy that took place in Alberta, Canada. The plaintiff, Smith, had been suffering from impaired vision in his right eye, which was minorly affecting his work as a laboratory technician. In March 1999, a licensed ophthalmologist recommended that Smith undergo a vitrectomy surgery to his right eye to improve his vision. Upon this recommendation, Smith opted to have the ophthalmologist perform the surgery in June 1999.

When Smith arrived for surgery, the anesthesiologist determined that topical, rather than general anesthesia, was appropriate for the surgery. The anesthesiologist administered the anesthesia and then inserted a needle to the right eye, causing Smith extreme pain. The anesthesiologist subsequently administered stronger anesthetic to his right eye. Smith still alleged that the treatment was not strong enough to numb his right eye, but the ophthalmologist went ahead and began the vitrectomy surgery. Smith again experienced extreme pain and moved suddenly, causing the ophthalmologist's needle to perforate the globe of Smith's right eye, resulting in vitreous and preretinal hemorrhage. Further sedation was added to the eye, and the ophthalmologist completed the vitrectomy successfully. However, Smith had to undergo several more surgeries to attempt to correct the damage resulting from the eye's perforated globe over the subsequent two years.

Major Issues in Dispute

In plaintiff Smith's Statement of Claim against the ophthalmologist and the anesthesiologist for negligent medical care, he alleged that his right eye's vision had become even more impaired than when he initially sought care from the ophthalmologist. He claimed that this increased and permanent vision impairment further hindered his ability to do his job as a laboratory technician, which required analyzing details under a microscope, and led to loss of past and prospective income. He also claimed that he was unable to complete regular day-to-day tasks and required home care and other services. Finally, he asserted that he suffered depression as a result of his injuries and had begun taking medication. In total, he sought damages approaching $5 million.

Neither of the defendants disputed the majority of factual events giving rise to the claim, but they challenged that any damages suffered by the plaintiff resulted from the doctors’ negligence or other misconduct.

There is a growing concern worldwide about ensuring fairness and justice in society, especially on behalf of those at the margins who have the least resources. In this book, we examine the responsibility that courts, particularly judges, have in guaranteeing justice. Judges could do more to meet the rising demand for justice by helping parties resolve their differences, not just by picking a winner and a loser—which is what litigation usually does—but by stepping in to assist the parties in resolving their differences themselves.

Since the early 1970s, judicial scholars in the U.S. and Canada have documented the costly failures of litigation—in terms of time, finances and shortfalls in achieving justice—and encouraged lawyers to find better ways to resolve their clients’ legal claims. Typically, judges and attorneys are opposed to the notion of judges stepping down from the dais to help parties settle disagreements. Canada, however, has embraced this prac¬tice. We look closely at a series of Canadian civil cases in which judges use Judicial Dispute Resolution (JDR) in just this way. Since JDR is almost always confidential, direct access to participant interactions and detailed descriptions of how the process works have not been available. Our case studies, though, through the intervention of Justice Tilleman and with the permission of the parties involved, are included here and lay bare the actual JDR courtroom experience.

JDR is a dispute resolution process in which a judge adopts the role of mediator to facilitate problem-solving conversations between disputing parties. In many instances, the judge is called upon to provide a personal assessment for the parties of what the likely outcome will be at trial if they can't resolve their differences themselves. At the outset of the process, the parties can decide whether or not they want their JDR judge's decision to be binding, dubbed Binding Judicial Dispute Resolution, or BJDR. If not, the process is Non-Binding Judicial Dispute Resolution, or just JDR.

A JDR judge's efforts to mediate go beyond what a private mediator typically can offer. The involvement of a sitting judge tends to enhance the credibility of the mediation process in the eyes of the disputants, and guarantees them a reasonably accurate prediction of what Oliver Wendell Holmes Jr. called “the oracles of the law.” Knowing the likely outcome of their case if it goes to trial often pushes parties to reach a voluntary settlement.

Aphra Behn wrote at least eighteen plays for the Restoration stage, predominantly comedic. Her humor features classic misunderstandings of language and perception as in Gayman and Belmour's opening exchange from The Luckey Chance, quoted above. Gayman attempts to bring confusion to a close by asking his friend “‘Do I speak English now, Sir?’” The most significant word in this bit of dialogue is that small word, Sir, Behn's most frequent semantic word in the drama corpus, and one that creates shifts in social dynamics disproportionate to its small size. Behn's comedies also feature classic love plots structured around at least two couples who encounter familiar impediments to fulfilling their destinies. Behn incorporates the love language and cycle of passions refined in her poetry, but her drama also demonstrates love more frequently as an action in service to the stage conditions of drama. As a female dramatist—the only woman writing regularly for the Restoration stage—Behn critiques restrictive codes of gender through her independent female characters, such as Celinda quoted above from The Town-Fopp. Celinda replies cheekily to her would-be suitor who has queried if she is able to love: “Oh yes, Sir, many things; I love my Meat, I love abundance of Adorers, I love choice of new Cloaths, new Playes, and like a right Woman, I love to have my Will.” Her reversal of expectations confuses Sir Timothy and demonstrates Celinda's wit, and Behn threads a subversive streak in her reference to women's love of agency. As in her poetry, Behn creates strong, rational female characters in her dramas who confront the moral dilemmas of seduction, the consequences of which play out on stage. Through both of these strategies, the use of small words, like Sir, and the creation of rational female characters, Behn questions the assumptions of patriarchal privilege in her plays and presents challenges to the subordinate status of women.

Aphra Behn opens her fiction, The Fair Jilt, with an aphoristic rule about the passion of love: “AS Love is the most noble and divine Passion of the Soul, so is it that to which we may justly, attribute all the real Satisfactions of Life; and without it, Man is unfinish’d, and unhappy.” In this study of Behn's language, it has become abundantly clear that her terms, “Passion of the Soul” and “love,” have specific meanings within the cross-section of seventeenth-century philosophical and spiritual thought, and that the words differ from modern usage. Like Descartes and Hobbes and other seventeenth-century thinkers, Behn is interested in the manifestation of passion in different characters, no more so than in her prose fictions. Passion is what R. S. White labels an early modern “meta-term” “to describe the internal processes and mental/bodily apparatus by which feelings were conceptualized.” It differs from emotions, which are particularized feeling states associated with the mind, and a concept that doesn't fully come into use until the nineteenth century. Behn's MFW in prose, love, is one possible manifestation of a passion of the soul in a feeling state, and in Behn's quotation from The Fair Jilt it is a positive and valued experience. Behn maintains “there are a thousand things to be said of this generous Passion” for those “whose hearts are capable of receiving its soft Impressions,” but “not everyone […] can be sensible of its tender touches.” The words “impressions” and “touches” point to the physical, bodily impact of love, which is consistent with an early modern understanding of the hydraulic system of humors and the perceived force of passion.