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.

Modern legal systems generally have a category of obligations known variously as restitution, unjust enrichment, unjustified enrichment or some variant of these. Whichever legal system they are found in, they have a common source in Roman law: the stoic idea that enrichment at the expense of another is unjust, obligations quasi ex contractu and the different forms of non-contractual condictiones. This chapter traces the development of the ideas from Justinian to the modern day, picking up ideas of equity along the way. It focuses on the shifting principles underlying the category, typified by its name, rather than its concrete instantiations, aiming to trace the largely unthinking patterns of borrowing from one legal system to another and from one language to another.

In a tribute to the work and writings of Professor John Bell, leading scholars present essays on factors affecting the course of ‘legal development’ in common law and civilian systems. This introductory chapter draws on their essays and John Bell’s scholarship to reflect on what is distinctive about comparative legal research. It shows how a comparative enquiry expands the boundaries of the law’s domain beyond ‘black-letter’ legal knowledge to embrace the reasons and context for legal development. It reminds us that a comparative law enquiry includes looking at the law’s roots in society, that is, at the law both in action and in the books, the legal institutions, legal cultures, and the extra-legal environment. References to the authors’ case studies in tort, contract, legal history and judicial studies illustrate the discussion of the key features of comparative law research.

This chapter argues for a concept of ’roundabout reasoning’ as a useful tool for comparative legal studies for the movement and adaptation of legal objects, in understanding domestic law, and in critiquing legal development. Roundabout reasoning is defined as a process to resolve potential conflict between two or more objects by (a) a simple method of sequencing their consideration; (b) where actors apply it autonomously; and (c) consideration takes place through a neutral third space without reference to their earlier state.

The high European judiciaries from Strasbourg, to Luxembourg, to Paris have become powerful institutional actors whose authority has moved past the interpretive, to the normative, to the political, and to the constitutional levels. At the very moment, however, that the judiciary blossoms into a full-fledged institution of government, it must find some new way to construct its legitimacy. This chapter thus sketches out two case studies that offer different, yet related, attempts to reconstruct judicial legitimacy in contemporary Europe. The first focuses on the judicial appointments reforms concerning the Court of Justice of the European Union and the European Court of Human Rights. The second turns to ongoing debates concerning the use of judicial analytics, the reform of the traditional French mode of composing judicial decisions, and other measures designed to increase access to French judicial reasoning. In a long series of interlocking reforms, both the French and European high courts have managed to further increase their already burgeoning clout.

This chapter, stimulated by Professor Bell’s contribution to legal education (as well as to comparative law and legal reasoning), tackles the question of whether traditional doctrinal law has anything to offer, intellectually, to disciplines outside law. That is to say, does law export knowledge to other disciplines or does it just import knowledge? Despite John Bell’s positive agenda asserted some eighteen or so years ago, this examination presents a gloomy picture. This is not to argue that law faculties are making no contributions to the Academy in general – indeed, the opposite is true. But such contributions are largely founded on knowledge imported into law faculties. Comparative lawyers, or some of them such as Professor Bell, offer some hope.

The chapter considers four aspects of the law of contractual interpretation in France that were affected by the reforms of the French Civil Code in 2016. It looks at the dichotomy between the subjective and objective approaches to interpretation, the codification of the dénaturation power of the Cour de cassation, the relationship between interprétation créatrice and interprétation explicative, and the application of the contra proferentem rule in the context of the interpretation of standard-form contracts. The innovations in the reforms are an improvement on the previous set of rules on interpretation. Whilst some controversies remain, the new principles address several of the long-running debates that were live before the reforms. They also bring a more modern and international approach to French contract law, which in part can be attributed to the extent to which the drafters were inspired by and drew upon a number of the international contract law instruments.

This chapter explores the influence of the rhetorical tradition on the early modern common law of interpretation. It focuses on William Fulbecke’s A Direction or Preparative to the Study of the Lawe (1600), a guidebook that instructed law students on principles of legal interpretation. Fulbecke was writing at a time when interest in interpretation was particularly intense, but his discussion is striking for its unusual sophistication. The chapter argues that Fulbecke’s account was strongly influenced by works on rhetoric, the art of speech and persuasion. Fulbecke was a pioneering comparative lawyer, and would have known that rhetoric was often used to aid interpretation by lawyers of the ius commune. The chapter demonstrates that rhetorical ideas also pervaded the English law of interpretation. Their influence is clear in Fulbecke’s work: Fulbecke aimed to set out a clear method of legal interpretation for beginners, based on the rhetorical works that students encountered at school and university. This chapter broadens our understanding of the relationship between the common law and the rhetorical tradition, demonstrating the importance of understanding the history of English law in its wider intellectual context.

This chapter outlines the main insights from John Bell’s comparative analysis, in his book Judiciaries within Europe (2006) regarding the factors which shape the character of a judiciary. The analysis focuses on the concept of ‘judicial culture’, which is a central notion for understanding the role and practices of judiciaries as social institutions. It discusses how research on courts in a globalised legal context can benefit from Bell’s insights on the values and practices relating to national judiciaries and his views on studying legal globalisation. The chapter highlights conceptual and methodological challenges which need to be dealt with when conducting research on national judiciaries in the evolving context of legal integration in Europe. Examples are drawn from a current research project on judicial cooperation in the European Union. Furthermore, this chapter presents some thoughts on legal scholarship in contemporary societal and academic contexts.

This chapter examines vicarious liability, that is, liability in tort for the tortious acts of others, and the insights that may be gained from a comparative law perspective. John Bell’s work on vicarious liability was cited by the UK Supreme Court in Cox v. Ministry of Justice [2016] UKSC 10, in support of its view that vicarious liability could be justified where the defendants had, in the exercise of their mission or enterprise, placed the tortfeasor in a position where the commission of the tort was an inherent risk of the activities assigned to them. This chapter examines comparatively the role ’risk’ plays in contemporary vicarious liability discourse. While civil law systems such as France have long embraced notions of risk, the common law courts have been slower to respond. Since 2000, however, UK and Canadian case law has indicated a willingness to move in this direction. In contrast, the Australian courts continue to resist the lure of risk- based analysis as an explanation and justification for the imposition of vicarious liability. Is relying on risk as a justification a ’risky business’ or inevitable if one wishes to expand this doctrine to meet the needs of meritorious litigants?