Jack R. Miller,*

Member of the Barreau du Québec (Bar of Quebec)
and the Law Society of Upper Canada (Bar of Ontario),
President of Interlex Group of Canada Inc.,
Conflict Resolution and Dispute Settlement Professionals

I was admitted to the Bar of Quebec in 1966 and the Bar of Ontario in 1979. For most of that time, I was a member of a large and successful law firm, Martineau Walker in Quebec and Fasken Martineau in Ontario.

Over that period, I have pleaded numerous complex commercial and administrative law cases before the Quebec Courts, the Ontario Courts, the Federal Court of Canada and the Supreme Court of Canada as well as before many administrative tribunals and other decision-makers and fact-finders.

I first heard of ADR in 1982. I heard of it from my clients. At the time, I considered myself a hard-nosed litigator of the fair but tough variety. I had learned from my mentor, Robert Walker, that once the decision had been taken to go to court, to get to trial by the most direct expeditious route. Settlement was not a goal. I loved it. I called it 'the chase': the fox and the hound. Sometimes you were the fox, sometimes you were the hound.

* 3680 de la Montagne Street, Montreal, Canada H3G 2A8
Tel.: (514) 289-8614 fax: (514) 289-8774

Somehow, my clients didn't always share my enthusiasm. For one thing, they had to pay my bills, which I myself would not have liked to receive, and for another thing they still had to face the prospect of losing. And the trial was many years in the future. Along the way, they would lose a lot of time and energy of key people in the trial process. As they say, time is money.

No wonder managers (and owners) of business corporations put pressure on their internal legal counsel to find alternatives to what they called "the high cost of litigation". This led to the founding of organizations like the Center for Public Resources headquartered in New York City. And it led to clients of Jack Miller asking Jack Miller to help them look for these alternatives.

The high costs of litigation were not the only motivation of the search for alternatives. Other factors also were important: the trauma of the litigation process, the destruction of business relationships in the litigation process, the inflexibility of the rules, the limited options of the litigation process, the adversarial confrontation of the litigation process, etc. If you listen to clients talk about their motivations, I think that you will hear them talk about these other factors first. The clients were not getting value for their money. The clients were carrying on business in a different way under a different set of assumptions.

I'll give you one small example. A client consults a lawyer, sensing a need for the assistance of a third party, generally to tell the other guy to shape up. The lawyer accesses that third party, namely the Court, by means of legal proceedings where the lawyer "represents" the party. What does that mean? It means that you've lost your voice and that someone else is going to speak for you. You'll only be able to speak through legal pleadings, affidavits, under the rules of evidence. Think about the trauma of this. Transpose it to some other context. Clients want control, not of the other guy, but of themselves. Adjudication means someone deciding for you.

Dispute Resolution represents a major shift, which goes way beyond a concern for high costs: clients want quality at a low cost. At first, many felt that they could ride the back of the discomfort of lawyers and courts and say that they could do a better job at a lower cost. Arbitration, mediation, conciliation, negotiation are not new: they are mentioned in the Bible. In fact, it is highly constructive to look at what mediation was in the Bible. I'll leave it to you to look this up and to think about it

While arbitration, mediation, trials, etc. are time-honoured and appropriate decision-making mechanisms in certain situations, it was clear that they were being over-burdened and utilized in inappropriate situations while leaving major needs of the public unaddressed. Those traditional decision-making mechanisms need an overhaul. Mainly they need burdens removed from them so that they can function properly according to their original design. There is also a need for innovative mechanisms which can work harmoniously alongside so that the whole constitutes an efficient and effective dispute resolution system meeting the needs of the public.

It is the traditional dispute settlement mechanisms, renovated and restored to their original design, and the new conflict resolution mechanisms which together constitute Dispute Resolution. I have identified 38 Dispute Resolution systems. There are more. I list those that I could name. We are inventing more because the new paradigm is that the process is designed to fit the circumstance and not vice versa.

With this background, I now come to the truly innovative and pioneering work of the Quebec Superior Court, District of Montreal, which began under the leadership of then Chief Justice Alan B. Gold in 1989, continued and is continuing under the leadership of Chief Justice Lawrence A. Poitras, with the support of the Barreau du Québec, le ministère de la Justice du Québec, the Honourable Gil Rémillard, Minister, and the Board of Trade of Metropolitan Montreal.

This pioneering work has been animated by the Honourable Mr. Justice Gontran Rouleau, aided and supported by his colleagues. It has been my very great privilege, along with several of my colleagues, during this period, to assist not only the Court and Mr. Justice Rouleau and his colleagues but also the Bar, the Justice Department and the Board of Trade to realize their deeply felt concern for justice by the integration of innovative conflict resolution processes into the Court's dispute resolution process for commercial and administrative law matters. Former Board of Trade President, Jean Guibault, who initiated a conflict resolution program at the Board, is now Mr. Justice Jean Guibault of the Quebec Superior Court.

In the time and space allotted to me today, I can only refer to a few of the features which might characterize and distinguish the pioneering work of the Quebec Superior Court.

First, it is above all motivated by a quality objective as opposed to a quantity objective. Actually, they go hand in hand in the new paradigm. Arbitration is well established in the law of Quebec. The Court has a well-established case management program, featuring a pre-trial conference. There is an established Mediation Program for matrimonial, principally divorce settlements, which might some day be extended to other kinds of cases.

So the program is not arbitration - it does not compete with the judges. The only arbitrators in the court system are the judges themselves. However, the Quebec Code of Civil Procedure makes handsome provision for arbitration. The program is not case management - it does not compete with judges handling pre-trial conferences. The program is not mediation - this is already provided, at least in the divorce settlement area.

What is it then? We call it "conciliation", a reference to the familiar and traditional, and "consensus-making", a reference to the unfamiliar and the innovative, indicating the synergy and interaction of the two paradigms of dispute settlement and conflict resolution, "Conciliation et Concertation" in the French language. It involves a role for an "animateur-expert" which we have rendered in English as "expert moderator" or "conflict resolver". It is consensual, binding, decision-making, interest-based, rights-assured, power-respected.

It works. That's the good news. The bad news is that it's unfamiliar and innovative, especially to the legal community, although it parallels change in the business community. Many people will stay in a bad situation because of their fear of the unknown. At least the bad is known to them. "The devil you know, etc." So it is one of the roles of the Court to assist the community who works with it to gently experience Conciliation & Consensus-Making. Accordingly, the program is voluntary and does not prejudice trial dates arrived at through the case management system. The result is enormous savings at the same time that tremendous quality gains are being made for all concerned.

However, change does require adjustment. The chief challenge of the court is the traditional view of itself as having the mission exclusively of rendering judgments. However, final judgments only dispose of about 10% of cases brought to the court. What happens to the other 90%? There is nothing sadder in my view than to see a beautifully reasoned and highly literate judgment which does not put an end to the strife between the parties.

We know that the chief mission of the courts is justice for the parties. We refer to the courts as 'the Courts of Justice'. They work in a "Palais de Justice". There is a tradition of judges in chambers promoting out-of-court settlements. Parties must satisfy the Court to obtain equitable relief that there are no other means of obtaining such relief than by the intervention of the court.

The program targets the toughest cases in the system from the moment that the Court has jurisdiction to intervene, namely commercial and administrative cases which the parties have declared ready for trial and have estimated at least 3 days for trial.

The Court issues an invitation to the parties and their counsel to consider a conciliation and consensus-making decision-making process prior to trial without prejudice to their trial date and to attend an information session hosted by the Court on such a process.

At the information session, which is without obligation for the parties and their counsel, the Court presents its support for such an initiative and an expert on such processes attends pro bono publico to give detailed information to the parties. Both the parties and their counsel participate.

The parties then decide whether or not to take advantage of the opportunity. If not, the case continues its course to trial. If yes, the case proceeds to conciliation and consensus-making with the trial still available as a safety net in case the parties are not able to reach a consensus or in case the parties need the Court to settle a particular question. The parties then retain the conflict resolver of their choice to assist them on a basis of reasonable fees, market driven.

In the pilot project involving about 170 cases, all parties and their counsel responded positively to the initiative. About 20% decided that it was not for them. About 20% decided it was for them and wanted to proceed immediately. About 60% needed further information. The trial time saved is not lost since the Chief Justice then can make it available to parties who need it on an urgent basis.

At the present time, necessary logistical support is being put in place to support the program, including the number of experts qualified to operate in a paradigm of conflict resolution in a dispute resolution program in a Court. The benefits are clear: substantial savings and an enhanced quality of justice. But the challenge of change remains. The Court wants to make sure that the program is built well and that it succeeds. Strong leadership is required to meet this challenge.


Article published in SPIDR (Society of Professionals in Dispute Resolution)
Seeking Common Ground
21st Annual International Conference
Toronto, Ontario
October 20-23, 1993

All Rights reserved Interlex Group © 2005