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 action.
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.