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.