Binding Judicial Dispute Resolution

Binding Judicial Dispute Resolution - Past Pilots

Courts that Have Tried Binding Judicial Dispute Resolution

On May 14, 2021, a pilot was started to test whether a new type of dispute resolution would help people in a family law court dispute, while at the same time clearing the backlog in the courts.

Binding Judicial Dispute Resolution (Binding JDR) was started in Simcoe and Muskoka. In March 2022, it was extended to Peterborough, Lindsay and Cobourg. It has also since been extended to Kitchener-Waterloo.

In the pilot, both sides had to voluntarily agree to take this path toward a settlement or judicial decision in their case - instead of following the regular procedure.

Binding JDR is a hybrid animal with certain features of a settlement conference and elements of a trial.

Photo credit: Sora Shimazaki

What is a Settlement Conference?

To recap my previous post, a settlement conference is an informal hearing that allows both sides to get an opinion from a judge as to how he or she would decide the case if it were at trial.

You can also have a more free flowing conversation between the parties and the judge at the conference. It is designed to help the parties come to an agreement and end their dispute in a fair way that avoids a trial. To get the judge's feedback of certain issues, the lawyers or parties can ask the judge direct questions to invite comment.

What's in a Trial?

A trial is a complex set of hearings that allows each side to call witnesses, summon the witnesses, trial records need to be made, evidence needs to be carefully introduced to support facts, and each party and other witnesses are both examined and cross-examined by each side or their lawyers. Offers to settle are usually made just prior to trial. A lot is involved in trial preparation, and the trial itself is an ever evolving situation.

Trials typically cost each side about $5,000 per day, plus all the preparation leading up to the trial. At the end of a trial a judge makes a final decision that binds each side. The decision is published and becomes part of the public record of cases.

What is Binding JDR?

Binding JDR is mindful of the pros and cons of trial for certain types of cases. My view is that the judiciary is mindful of the principle that the 'forum should fit the fuss' and has carved out a new path for certain cases. This is a good thing.

Rather than witnesses being summoned and examined or cross-examined in the box, evidence in binding JDR is expected to be introduced only with a special document called an affidavit.

It's a formal statement that a person swears to being true and signs it in front of his or her lawyer or a commissioner for taking affidavits.

It will have the important facts and what a persons' proposal is to resolve the point of disagreement.

The hearing in front of the judge will be more informal that a regular trial. The judge will take a proactive role in getting feedback from each party, asking questions, and proposing solutions.

Unlike a regular trial, the parties do not generally get the right to cross-examine each other.

And the many complex rules of evidence get relaxed.

Because the estranged or former spouses have agreed that the judge will make a decision at the conclusion of the hearing(s), the decision is expected to arrive shortly thereafter, and it will be written but it will be shorter than a normal trial decision.

For binding JDR to work, the parties ahead of time agree that they waive their right to the family law rule that normally bars a judge who hears the settlement conference from being the judge to decide the trial.

Photo credit: August de Richelieu

What Case Is the Right Fit for Binding JDR?

both sides must voluntarily agree to go this route
all financial disclosure must have been made
the dispute is relatively simple and only the estranged or divorce parties would be witnesses at trial (so, no summonses needed)
must be some agreement of key facts with the only disagreement as to how the law applies to the agreed upon facts
the case can be decided in a hearing of 3 hours or less
the judge's decision and brief reasons will be given orally (take good notes!) with a written document called an "endorsement" that contains the handwritten court order
each side accepts the possibility that if the judge realizes that the issues are becoming more complex that expected (e.g., requiring more witnesses or requiring cross-examination), the court may change the binding JDR case into the standard procedure case and schedule a regular trial

Photo credit: Jopwell

Takeaway

For the right type of case, binding JDR promises to provide a great path to a faster and less costly decision.

I look forward to seeing how the family law courts in Middlesex (London) apply binding JDR to the London area when it becomes an option in the coming months.

Photo credit: Yadelis Nicole

Questions

One question that might come up is what if a party wants to appeal the decision? In that case the fact that the decision was given orally might become an issue to deal with, unless there is a court reporter who transcribes the dialogue during the binding JDR.

Usually in a regular settlement conference the transcription would not be available to the parties at trial or on appeal because a conference is considered to be "without prejudice" so that the parties and judge can feel free to discuss possible solutions openly. Further on this, if there is no written decision and no transcript, the decision is impossible to appeal because an appeal court will not be able to know how the judge arrived at his or her decision.

Perhaps, at the end of the day the type of case selected for binding JDR is the type that would not lend itself to an appeal because the parties don't have the money for an appeal or the stakes are not high enough to justify spending money on the appeal.