Home About Us Reports Final Report 2003 - Transforming Relationships Through Participatory Justice Chapter 3 Participatory Justice in a Non-criminal Context: Consensus-based Justice

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Transforming Relationships Through Participatory Justice

Chapter 3 Participatory Justice in a Non-criminal Context: Consensus-based Justice

In Chapter 3, we review the development of participatory justice processes for resolving non-criminal conflicts. Whether in commercial litigation, bankruptcy, landlord-tenant disputes, administrative law, family law or other legal domains, over the past two decades a number of non-adversarial processes have developed with participation as a core value. We use the term consensus-based justice to refer to innovative methods of resolving conflicts in these domains.

Like restorative justice, consensus-based justice often arose as a response to frustrations with the adversarial processes. In traditional systems, the focus is on the event, and the wrongs and rights, as defined by rules and principles—inevitably leading to the construction of stories of personal experience—as processed by professionals. [1] In criminal and non-criminal conflicts, disputants feel that they have been displaced and that they have lost ownership of their conflict and control over its outcome. The course of conflicts is clearly affected by similar escalating factors-for example, a dehumanizing experience, the detached formality of legal process with its technical but rarely emotional or cognitive resolution. A major difference between the two systems may be the extent to which some relationships affected by civil matters are restricted to particular individuals, while the collective community that might be understood as affected by criminal behaviour might be drawn much wider. What is clear is that there are many similarities between the conditions that have led to the development of restorative and consensus-based justice alternatives to the formal justice system.

This chapter will examine innovative methods of conflict resolution in the civil system. Over the past two decades there have emerged a number of promising alternatives to the adversarial processes that have “consensus” as a core value. Most work described as consensus-based justice occurs in relation to conflict outside the criminal sphere, for example, family mediation, community mediation, administrative tribunals, civil court-connected mediation; landlord–tenant disputes; and facilitated dialogue around environmental and other types of policymaking. Just as we have seen with the development of restorative justice initiatives, some of these programs operate inside the formal justice system, and some operate outside or are loosely connected to it. A number of emerging practices illustrate this approach, and some examples are described below.

3.1 THE CONTEXT

Much like the growth of restorative justice in the criminal context, the rise of consensus-based justice processes was the result of several factors. Section 3.1 will review some of the factors that contributed to the rise of consensus-based justice.

3.1.1 The gap between adversarial justice and disputants' conceptions of justice

The history of the inability of formal justice models to provide the types of outcomes that disputants really want and need can be traced back at least as far back as the Middle Ages. The original English “merchant courts” were developed as an alternative to the king’s courts by the merchant classes who wanted a speedier and more practical means of resolving their commercial disputes. In the 20^th century, the development of commercial arbitration, both domestic and international, emerged as a result of similar dissatisfactions with the civil justice system. Commercial parties seek outcomes to business conflicts that recognize the conventions of business practice and that are developed by adjudicators familiar with these conventions and with the impacts of these disputes on commercial operations. They want solutions that can be implemented without unnecessary delay or cost and that maintain positive on-going relations. Private judging services now exist in many different forms, including binding and non-binding evaluations. Some may question whether commercial arbitration, in its increasingly formalized format, actually meets these needs in the manner originally intended. However, there is no disagreement about the impetus for its growth. [2]

In the 21^st century, the same gap persists between the needs of many commercial disputants and what the formal justice system offers them. For example, businesses that deal exclusively or mostly on the Internet have begun to look for Internet-based solutions to their conflicts. Privately contracted online dispute resolution (ODR), which operates outside the world of judicial norms or actors, is a response to the frustrations of this group with the traditional civil court system of dispute resolution.

"The phenomenal growth of the Internet, both in terms of numbers of users, estimated at 323.7 million users in April 2002, and breadth of use, creates the first pressure point for ODR's [online dispute resolutions] development. ... Another critical force propelling ODR's emergence is e-commerce's economic vortex. Estimates of commercial activity emanating from the Internet are currently in the hundreds of billions of dollars with growth projected upwards to trillions of dollars within a few years. Consider the electronic revitalization of the old-fashioned auction through E-bay, where an estimated four million items are offered for sale each day. With increased economic traffic comes increased consumer and business complaints."

E. Zweibel, "On-line Dispute Resolution," in J. Macfarlane, (ed.),
Dispute Resolution: Readings and Case Studies (2^nd ed.)
(Toronto: Emond Montgomery, 2003),
citing J. Glasner, "Net Shoppers Still Complaining" (2001), online:
<http://www.wired.com/news/business/0,1367,44361,00.html at 520.

In turning to commercial arbitration, private judging, and ODR services, commercial agents express their frustrations with the adequacy and sufficiency of the traditional civil justice system. Another development that exemplifies the dissatisfaction of users with the traditional civil justice model—and appears more clearly influenced by aspirations to consensus-based justice and to restorative, healing, respectful processes and outcomes—is the development of collaborative lawyering for divorcing and separating couples. Increasing numbers of couples are choosing not to use court procedures to formalize their separation, whether for financial reasons (including the reduced scope of provincial legal aid for family matters), or simply because of dissatisfaction with the level of animosity that divorce and separation proceedings frequently generate.

The users of civil legal services have often been frustrated by the failure of adversarial justice to resolve the core problems they face, either in their commercial dealings or in their domestic relationships. There is a widespread desire to take greater control over outcomes than these types of adjudication permit. In addition, a particular theme for restorative and consensus-based justice initiatives is a desire to pay greater attention to the relationship dimensions of disputing dynamics and outcomes.

3.1.2 System costs

A very significant factor in the movement toward alternatives to adversarial justice is the cost of using the existing civil justice system. This cost includes both legal fees and the investment of time required to bring a civil action to trial. While there is increasing public attention to exponentially rising legal costs, early studies in the United States already showed a widening gap between investment in legal services and returns. [3]

Ontario’s 1996 Civil Justice Review [4] estimated that the cost of bringing a lawsuit, culminating in a five-day civil trial in the General Division, would be around $35,000—and legal costs have risen considerably over the ensuing years. Even when litigation settles on the eve of trial and legal costs will be lower than if a trial had taken place, they will nonetheless be significant. By this stage, the parties will likely have spent weeks or even months in preliminary questioning when the parties are examined under oath, which will account for a high percentage of total legal costs. As a consequence, lawyers are reporting marked changes in client expectations: they expect their lawyers to make early efforts to resolve cases before undertaking expensive discoveries, and they are demanding regular reporting on, and justification for, costs incurred.

Considerable resources have been put into programming initiatives to encourage the earlier settlement of litigation, with the goal of lowering costs, expediting resolution and possibly restoring (personal, commercial) relationships. Procedural reforms such as mandatory mediation and proactive case management [5] have achieved some success in increasing the rate of earlier settlement. [6]

Efforts to resolve the problem of last-minute settlement must take into account the pivotal role played by lawyers in the present system as the agents of disputing. [7] The practices, strategies and attitudes of lawyers are crucial to finding workable and efficacious solutions. In addition, the role that lawyers understand themselves as playing in the settlement process has its own cultural context, which both defines and constrains it. This has become clear in the mixed reactions of litigators to mandatory mediation in Ontario and Saskatchewan. [8]

A study funded by the Law Commission of Canada asked commercial litigators about the expectations of their institutional and commercial clients. One responded, "Now more and more clients are asking for an assessment right at the top from a timing stand point, and asking you to analyse what's the best time to get a resolution of the thing and especially with in-house counsel involved. They are very conscious of the costs and they want to know up front where the thing is going."

Another litigator reflected, "I've noticed a few of my commercial clients recently, the old 'just fight-at-all-costs and don't look at it (the legal bill), don't even think about an approach' (i.e., opening negotiations) just doesn't seem to exist anymore."

J. Macfarlane, "Culture Change? A Tale of Two Cities and Mandatory Court-Connected Mediation" 2 Journal of Dispute Resolution (2002) at 241.

There are no clear or easy solutions to the problem of excessive system costs, both in terms of delays and the costs borne by the parties. These types of costs are in themselves enough to persuade many system users that they need to create alternative processes that proceed more rapidly and are less costly than those of adversarial justice. However, expenditures of time and money are not the only or even the most significant costs of using the present civil justice system to manage conflict.

3.1.3 The other costs of conflict

Aside from system costs, there has been growing awareness of the related costs of conflict, whether in the workplace (for example, high rates of absenteeism caused by conflict) or in relationships (for example, fractured family relationships caused by acrimonious divorce proceedings). These further costs of conflict may be reflected in productivity, workplace morale, individual mental health, or family stability, but each is a cost that appears to be at best exacerbated by, or at worst actually created by, the adversarial process. There is increasing awareness among employers of the high number of days lost to absenteeism caused by conflict-related stress. Conflict management strategies in corporate and government settings are moving away from an adversarial, rule-driven approach toward a more inclusive, participatory environment. “Employees today equate fairness with a sense of participation, and failure to create a participative culture could, in the future, have a negative effect on employee commitment.” [9] In this context, practical conflict resolution and problem-solving skills are regarded as important management tools more than traditional machismo and toughness. [10]

Realizing the extent of these other costs of conflict has focused researchers’ attention on ways of de-escalating conflict at an earlier stage, before it reaches the level of a formal “claim”, with its consequent costs. The constraints of the formal justice system often make these types of restorative outcomes difficult to achieve. [11]

3.1.4 The community justice movement

Discontent with monetary and other costs of adversarial justice, as well as a gap between practical, desired outcomes to conflict and those available in a formal win–lose model, have contributed to the momentum of a search for alternatives. Efforts to create alternative processes have often focused on grassroots, community-based initiatives, just as in the development of restorative justice processes. The emergence of a community justice movement that takes on non-criminal issues affecting neighbours and neighbourhoods—for example, landlord-tenant disputes, neighbour disputes, and smaller consumer-merchant conflicts—is a response to dissatisfaction with the resolution of conflict in civil disputes, just as restorative justice initiatives search for an alternative to the formal criminal justice system. The same themes—the desire for community decision-making, a frustration with the bureaucracy of state dispute resolution systems, and a commitment to social justice issues, especially at a local level—are apparent and do not require repeating here. The momentum achieved by the community justice movement in the 1980s has played a critical political and structural role in the emergence of both restorative justice and consensus-based justice models.

3.2 POLICY FRAMEWORK

Statutory provisions to incorporate mediation into conflict resolution processes are common, both at the federal level and at the provincial level. Twenty-two federal statutes contain mediation provisions, and eighteen of them provide substantive mediation requirements as part of dispute or complaint resolution processes. The provinces and territories have also embraced mediation as a tool to varying degrees. New Brunswick and the Northwest Territories have included mediation procedures in a few statutes. Quebec, Ontario and British Columbia each carry mediation provisions on more than twenty of their active statutes. The type of statutes that have most commonly incorporated provisions for mediation include personal information protection acts, human rights codes, statutes related to land disputes, family law acts and numerous pieces of labour dispute legislation.

3.2.1 Federal initiatives

Some acts are more comprehensive than others. At the federal level, the Farm Debt Mediation Act [12] lays out a point-by-point process for mediation between insolvent farmers and their creditors. Labour dispute legislation tends to incorporate mediation as a first step in resolving disputes. Other acts also incorporate mediation. The Canadian Human Rights Act, [13] for example, includes a provision stating that the Minister, on receiving a request from the Tribunal to decide whether a member should be subject to remedial or disciplinary measures, may “refer the matter to mediation.” [14] The Divorce Act creates a statutory duty for lawyers to inform a client in divorce proceedings of any “mediation facilities” that might help in negotiating matters. [15]

The Bankruptcy and Insolvency Act [16] includes several mediation provisions. Under s. 68(6-10), a trustee or a creditor who disagrees about the amount of the bankrupt’s income to be paid to the trustee may request that the matter be determined by mediation; another section allows a dissatisfied bankrupt to make a similar request. The rules for mediation are set out in detail in the regulations to the Act and include provisions for timing, presence of the parties, mediator discretion, and formation of a mediation agreement. [17]

More extensive mediation provisions are incorporated into the Canadian Environmental Assessment Act. [18] The Act defines mediation as “an environmental assessment that is conducted with the assistance of a mediator.” [19] The mediator must be appointed under s. 30, which stipulates that the Minister must consult with all parties affected to appoint a mediator who is “unbiased and free from any conflict of interest” and who “has knowledge or experience in acting as a mediator.” Under the Canada Labour Code, [20] the Federal Mediation and Conciliation Service (FMCS) is responsible for providing dispute resolution and dispute prevention assistance to trade unions and employers. [21]

3.2.2 Provincial initiatives

British Columbia has government-directed mediation services. The Mediation and Arbitration Board derives its authority from the Petroleum and Natural Gas Act. [22] In 1986, the province created the British Columbia International Commercial Arbitration Centre (BCICAC). The Centre is directly named in the Nisga’a Final Agreement Act appendices, [23] which include provisions for a number of licensing agreements. Two British Columbia statutes, the Commercial Arbitration Act [24] and the International Commercial Arbitration Act, [25] refer commercial disputes to BCICAC. The International Commercial Arbitration Act is based on the model set out by the United Nations Commission on International Trade Law (UNCITRAL) and refers to the development history of the UNCITRAL Model Law on International Commercial Arbitration [26] for assistance in interpreting the British Columbia statute. Similar statutes have been enacted in other provinces with reference to the UNCITRAL model. Most provincial versions of the international commercial statute contain a provision based on the following:

30(1) It is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement. [27]

In June 2002, the UNCITRAL Model Law on International Commercial Conciliation was released. [28] It is hoped that the conciliation model will be as well integrated into provincial law as the arbitration model was.

Mediation provisions have been most widely incorporated, as well as being presented in the greatest detail, in statutes pertaining to divorce and family law. In 1997, the Quebec General Assembly introduced extensive amendments to the Quebec Code of Civil Procedure that provide a detailed framework for mediation in divorce proceedings. [29] The Code stipulates that no application that involves the interests of the parties and the interests of their children may be heard by the court if there is a dispute between the parties regarding child custody, support due to a party or to the children, the family patrimony or other patrimonial rights arising from the marriage, unless the parties have attended an information session on the mediation process and a copy of the mediator’s report has been filed.

The province has made mediation a mandatory part of the divorce process, a legislative action that brought with it the creation of Quebec’s Family Mediation Service.

Mandatory mediation in such instances has received considerable criticism because research seems to show that spouses with tangible resources tend to experience an advantage in mediation proceedings; post-divorce depression prevents people from working in their own interests; women’s low perception of entitlement affects their negotiating skills; the blending of issues means women will often trade financial benefits for custody, regardless of the potential court outcomes; and of course, serious power dynamic problems exist where there has been a situation of physical abuse. [30] The Quebec legislators have gone to great lengths to mitigate such power imbalances. After an information session, the mediator files a report and the participants have the choice of pursuing mediation or not. [31] Either of the parties can terminate a mediation at any point in the proceedings “without having to give reasons,” and mediators also have the power to end a mediation if they consider it “ill-advised.” [32] As well, the court may at any time step in and make any “appropriate order to safeguard the rights of parties or children” during the mediation. [33] In addition, a party may refuse to attend the information session and may inform the mediator that their choice is related to “the inequality of the power relationship ... or the physical or psychological condition of the party.” A further protection, one common to most provincial family acts, is a confidentiality clause, which prevents any statements made during mediation from being presented to the courts.

Other provincial statutes also provide for mediation in family disputes. For example, the Northwest Territories Family Law Act [34] provides that the court may order a mediation on topics of its choice as does the Ontario Family Law Act. [35] The Ontario Act directs payment for the mediation to come from the parties, while the Quebec amendments place the fees for a limited number of sessions with the Family Mediation Service. Clearly, further developments will be forthcoming in this area.

Statutes dealing with conflicts that tend to involve high levels of citizen and government interaction often have incorporated mediation provisions. For example, Alberta’s Municipal Government Act requires that mediation be attempted for disputes between municipalities and landowners and for intra-municipal disagreements. If mediations fail, the municipalities must submit to the court explanations for the failure to reach a mediated settlement. [36] In British Columbia, the Local Government Act allows the Minister to force parties into mediation when there is a dispute that involves the withdrawal of services. [37] The Minister may also order mediation if there are attempts to pass bylaws for service withdrawal but an inspector is not satisfied that the parties to a service have come to an agreement. [38]

3.2.3 Other initiatives

Besides the International Chamber of Commerce and the American Arbitration Association, many organizations provide mediation and arbitration services. For example, the Canadian Commercial Arbitra­tion Centre provides both arbitration and mediation services. Recent developments include services in disputes regarding “.ca” domain names and amateur sports disagreements. The movement is well established at the international level. For example, the Commercial Arbitration and Mediation Center for the Americas was founded in 1995 by national institutions devoted to the development of consensus-based dispute resolution practices in disputes in international commercial agreements. [39]

3.3 MEDIATION ACCREDITATION IN CANADA

A number of professional associations of mediators have emerged both nationally and provincially over the last few years. Nationally, the ADR Institute of Canada (ADRIC) provides training and a national accreditation scheme for mediators and arbitrators. Since its inception ADRIC has developed a strict set of rules and procedures for accreditation, as well as a series of protocols for various forms of mediation.

To attain the designation of chartered mediator with ADRIC, a practitioner must meet educational, practical experience and skills assessment requirements, pass reviews, and obtain the approval of a Regional Institute’s Accreditation Review Committee and ratification by ADRIC’s National Accreditation Committee. [40] Applicants must also complete a pledge to abide by ADRIC’s Code of Ethics.

Also nationally, Family Mediation Canada (FMC) offers three forms of certification: family relations mediator, family financial mediator and comprehensive family mediator. Certification requires a thirty-hour practicum or two years of experience, with references; the submission of a role-play video, which is assessed by a FMC assessor; completion of an exam; and ratification by the FMC Board of Directors. Maintaining certification requires participation in continuing education programs and adequate insurance coverage.

In British Columbia, the Mediator Roster Society admits mediators in civil mediation and family mediation. [41] In the Saskatchewan Civil Mediation Program, mediators are hired by the Dispute Resolution Office on the basis of a combination of training and experience.

Justice Quebec does not dictate who is used as a mediator under their mediation program, but refers parties to professional organizations. The “Institut de médiation et d’arbitrage du Québec” (IMAQ, Mediation and Arbitration Institute of Quebec) has brought together four professional organizations under an agreement to provide a central civil mediation roster. [42]

Under the new mandatory mediation program in Ontario, mediator applicants are chosen and approved by local mediation committees. The committees’ guidelines are based on a point system, in which applicants receive points for their experience as a mediator, for training and for education; for their familiarity with the civil justice system and for references. In Nova Scotia, the Barristers Society, in conjunction with the Department of Justice and the local mediation community, established a Civil Mediation Roster that is managed by the Barrister Society and administered by the Civil Mediation Policy Committee. [43]

3.4 CONSENSUS-BASED JUSTICE PROCESSES

It is within this context that a number of innovative, consensus-based justice processes have been developed. These processes cover different types of disputes, including those related to family law, landlord– tenant relations, bankruptcy, administrative law and commercial interests. This section will review some processes that have been developed over the past two decades.

3.4.1 Community mediation

The earliest formal manifestations of community-based mediation services in non-criminal matters were the neighbourhood justice centres that arose during the 1980s. By 1985, there were 182 community justice centres offering informal, consensus-based dispute resolution procedures across the United States. [44] In Canada, an early community mediation service was developed in Kitchener–Waterloo that grew out of an early victim–offender initiative (Community Justice Initiatives).

One model is for a conflict resolution program to attach itself to an existing community centre, with perhaps one or two funded staff with the remainder of the services provided by trained volunteer mediators. The reliance on a combination of short-term project funding and a volunteer pool means that community mediation programs often face instability and insecurity in their operations. Generally, community mediation programs provide a body of volunteer mediators whose diversity—of language and ethnicity— matches that of the local population. A co-mediation model, with substantial effort made in early case development before bringing the parties together, is also common.

The caseload of most community mediation programs is diverse, including both non-legal or pre-legal disputes, such as neighbour, neighbourhood or roommate conflicts, as well as matters that are already following legal procedures, such as landlord—tenant disputes, consumer goods or services complaints or disputes between small businesses. In such cases, if an agreement results from mediation, it may be filed with the court, which will discontinue the action. Some programs have formalized referral links with local small claims courts (for example, the University of Windsor Mediation Service) or with local city services (for example, Community Justice Initiatives of Kitchener–Waterloo or Toronto’s St. Stephen’s Conflict Resolution Service) or with local police.

The mediation filmed by the National Film Board that is the subject of the DVD attached to this report is a community mediation.

3.4.2 Court-connected mediation

The last decade has seen the successive introduction of new rules of procedures that enable a formal referral from the justice system into a court-sanctioned mediation process. The first example of a mandatory court-connected mediation program in Canada was in the Saskatchewan Court of Queen’s Bench, which introduced early mandatory mediation in civil non-family cases in two centres (Regina and Swift Current) in 1994 under the Queen’s Bench Act. [45] Ontario introduced a mandatory mediation pilot program under a Practice Direction to the Toronto General Division in 1994. [46] In 2000, a new rule of civil procedure made mandatory non-family civil mediation a permanent feature of litigation in Toronto and Ottawa. [47] Similar procedural reforms have been introduced in British Columbia [48] and are being considered in Alberta.

In relation to more familiar pre-trial processes, court-connected mediation generally occurs earlier in the litigation process and is usually (although not always) hosted by a non-judicial officer. Such processes are intended to structure a discussion between the parties over settlement options and if possible, assist in the crafting of a settlement. Where attendance is mandatory, mediation is scheduled for two to three hours, although the parties may choose to continue if they believe the process to be constructive. In mandatory programs such as those of Ontario and Saskatchewan, attendance at a mediation session is required before the matter can proceed through the regular court process.

3.4.3 Judge-led settlement conferencing

Rules of court are allowing more opportunities for judges to play a proactive role in moving the parties toward settlement. Sometimes this intervention takes the form of a broader case management initiative, in which a judge is assigned at an early stage to ensure that a timetable is agreed to. [49] Moreover settlement conferences, which are most commonly used as a means of canvassing settlement options under the evaluative guidance of a judge, are now included in either, or both, family and civil non-family matters in all Canadian provinces.

In 1998, the Quebec Court of Appeal initiated a judge-led conciliation service. The Conciliation Service, which is offered free of charge, is open to all parties involved in civil, commercial or family litigation at the appellate level. Parties to the conflict must agree to participate in the process. Filing for conciliation suspends the appeal proceedings, but any party may abandon conciliation and return to the ordinary appeal process at any time. Confidentiality is crucial to the success of the program. The parties voluntarily commit to keep all matters strictly confidential and refrain from disclosing the substance of all discussions. There are no transcripts or summaries of the conciliation session. If the parties are successful in resolving their conflict, a settlement agreement is drafted. The settlement agreement is ratified by an independent panel of three judges of the Court of Appeal. The judgment is then as enforceable as any other judgment of the court.

3.4.4 Collaborative family lawyering

A final example of the use of consensus-based justice in non-criminal matters is the development of collaborative family lawyering. Collaborative lawyering reflects a commitment by the lawyers and their clients to negotiate an alternative to a litigated or adjudicated outcome. Collaborative lawyering refers to a contractual commitment between lawyer and client not to resort to litigation to resolve the client’s problem. The lawyer is retained to provide advice and representation regarding the non-litigious resolution of the conflict and to focus on developing a negotiated, consensual outcome. If the client does decide that legal action is ultimately necessary to resolve the dispute, the retainer stipulates that the collaborative lawyer (along with any other collaborative professionals, such as divorce coaches or financial planners) must withdraw and receive no further remuneration for work on the case. [50]

Originating in Minneapolis in 1990, collaborative lawyering arrangements have flourished in Minnesota, Ohio, California, Texas and Georgia, and now in many Canadian provinces, including British Columbia, Alberta, Saskatchewan and Ontario. Proponents of collaborative law suggest that this approach reduces legal costs; expedites resolution; leads to better, more integrative solutions; and enhances personal and commercial relationships. [51]

3.5 THE OBJECTIVES OF CONSENSUS-BASED JUSTICE

The discussion that follows describes four key value-based objectives for consensus-based justice. The model of consensus-based justice presented here is not simply a descriptive model for negotiation within an adjudicative context. Conventional legal negotiations that

"By the time litigants arrive at the Court of Appeal, they are firmly gripped by the mindset of the adversarial system. Having had this direct experience at the trial division, the adversarial attitude often settles in and does little to encourage parties to consider resolving their conflict amicably, on their own. Judicial conciliation offers litigants this opportunity to withdraw—voluntarily and temporarily—from the formal adversarial system. It allows them to settle their differences with the active support and assistance of a judge. The process as such presents no risks for the parties who remain free to return to the formal system should a settlement not be achieved."

The Honourable Louise Otis, "The Conciliation Service Program of the Court of Appeal of Quebec," prepared for the NAFTA Advisory Committee on Private Commercial Disputes and presented at the Alternative Dispute Resolution for Judges and Businesses Conference, Mexico City, Mexico, June 1999.

occur between lawyer–agents in the process of litigation often adopt many of the same values and principles as adversarial justice. [52] The concept of consensus-based justice draws on a set of objectives, including a desire to fashion consensual outcomes that meet individual needs; the inclusion of individual disputants as direct participants; and a focus on the relationship dimensions of the conflict, both present and future.

The four key objectives presented are shared among programs and proponents. These objectives are

• clarification of the wrong and an appraisal of its impact;

• distribution and assumption of responsibility;

• relationship transformation; and

• moving forward. Each of these objectives is discussed below.

3.5.1 Clarification of the wrong and an appraisal of its impact

From a consensus-based justice perspective, the first step in conflict resolution is clarification of the wrong, rather than attributing it to or blaming someone. The relevant question becomes “What happened here?” rather than “Whose fault was it?” This implies an exploratory and investigative element in the dialogue, as well as an appraisal of the actual impact of the harm done by the act.

Traditional civil justice also includes an exploratory and investigative phase during which parties and others are examined under oath. However, the motivation and rationale for gathering information and the use of it are quite different in a consensus-building process than in litigation. In litigation, information is gathered to substantiate a particular version of events. [53] Evidence is generated to enhance a particular rights-based argument, and anything that does not bear on this is deemed irrelevant. Presenting information as evidence means presenting it as “fact” and requires a certain denial of ambiguity, circumstance or context. In this adversarial model, the side with the most complete and well-constructed information file is best placed to carry the day. In adversarial processes, information is for winning, not for sharing.

Where negotiations anticipate an outcome developed by the parties themselves, rather than one in which there is a clear winner and loser, the purpose of information collection is clarification. Instead of being for winning, information is sought and disclosed to build a better collaborative outcome for the parties. This does not mean that tensions do not arise. Nevertheless, in consensus-based justice processes—such as mediation, settlement conferencing and collaborative lawyering—the ability to identify and share information that is essential to early resolution is a critical skill. [54]

A consensus-based justice approach emphasizes value-creating negotiation strategies for creating power with rather than power over outcomes. [55] Personal, business, practical and emotional issues can be factored into solutions that might include future business arrangements, monetary settlements, an apology or an acknowl­edgment of responsibility or of unintended impact, or the bestowal of some other valued outcome by one party on the other. [56] Focus shifts away from finding a winning formula toward discovering a good outcome; for this to be possible, there must first be clarification through the sharing of information.

3.5.2 Distribution and assumption of responsibility

The initial gathering of information in a consensus-based justice process has a different purpose and is of a different nature than in an adversarial civil litigation process. More accurate, fair and practical allocation of responsibility will take place following a full disclosure of information, so that the wrong can be clarified.

Based on the information now available, the parties in a consensus-based justice process must assess who assumes responsibility for the harm, and for which part of the harm, caused by the conflict. A degree of flexibility over the distribution of responsibility is possible in a consensus-based justice process. This type of flexibility does not always exist in a conventional litigation model. A consensus-based justice approach to conflict enables factors to be taken into account in responsibility allocation beyond what formal rules of law might suggest.

In consensus-based justice processes, which are concerned with positively impacting actual and perceived relationships, responsibility-taking is important, but it is not a win–lose proposition. In other words, there is no given volume or depth of responsibility that must be assumed by one party. Responsibility is divisible, and it need not add to up 100 percent. The parties can negotiate what responsibilities each has to the other and how these may have been broken, assess the factors relevant to that breach of expectations (including, for example, factors beyond one or the other’s control), and eventually determine how much responsibility each must assume and what is the acceptable measure and tone of regret.

3.5.3 Relationship transformation

Each of the objectives listed above works toward the ultimate goal of consensus-based justice processes: the transformation of the relationships damaged or broken by the conflict. Transformation refers to a range of possible outcomes, from reconciliation to future avoidance. The important point is that the negative energy that fuelled the conflict is confronted and addressed, even in the most pragmatic of ways (for example, by preventive steps and avoidance).

Some writers and practitioners argue that the central objective of consensus-based justice processes is to significantly change a relationship, whether or not the conflict is actually resolved. [57] This approach acknowledges that different parties in different circumstances may seek different levels of resolution for their conflict and that none is proscribed or prohibited in a party-driven consensus-based justice process. For example, one disputant may simply want another party to stop a behaviour. Another may look to reveal a different understanding of what produced the dispute and why the other person behaved as they did. Yet others may feel that their emotional needs have been met in the resolution. [58]

The model of consensus-based justice proposed here—and which we suggest has the most widespread currency among the many and various manifestations of consensus-based justice—does not assume that the only good outcome of conflict is a better, or at least significantly changed, relationship between the parties, regardless of whether the conflict has actually been addressed and resolved between them. [59] What is highlighted is the importance placed on relationships, as both a symptom and a cause of conflict, and the need to offer process opportunities to the parties to enhance this (business or personal) relationship.

3.5.4 Moving forward

Consensus-based justice processes encourage disputants to take a long hard look at the future, beyond the conflict that is presently consuming them. First, the clarification and appraisal stages of the process are designed to ensure that the parties can move forward to consider the future, including their future relationship, whatever form that might take. Second, the outcomes of consensus-based justice processes anticipate future issues and even conflicts and attempt to address these in a proactive, realistic manner. A good example of this is the difference between an order for custody and access made by a family court judge and the types of detailed, context-specific agreements that may be reached as a consequence of family mediation or collaborative lawyering; or the potential for structuring commercial agreements to enable structured payments, rather than the single judgment order of a court.

Third, consensus-based justice sees the process of dialogue and resolution itself as a rehearsal for the future, whether involving these parties and issues or another context of conflict resolution. The emphasis placed on a fair, accessible and constructive process of dialogue by consensus-based justice models is not simply instrumental, achieving a given end; it anticipates a future in which other conflicts will need to be addressed and offers some tools for that future.

3.6 CORE PROCESS VALUES FOR CONSENSUS-BASED JUSTICE

It is in the domain of process values that the congruence between restorative justice and consensus-based justice is most striking. Both restorative justice and consensus-based justice processes emphasize the importance of giving explicit voice to all those involved and

The Objectives of Consensus-based Justice

In summary, the Commission believes there are four objectives that consensus-based justice processes ought to strive for:

• Clarification of the harm and an appraisal of its impact;

• Distribution and assumption of responsibility;

• Transformation of relationships; and

• Moving forward.

affected by the conflict in a way that ensures that they can use their own words to describe the impact on themselves.

Each type of process assumes that the form of dialogue that will enable the achievement of its objectives is one that occurs, for the most part, face-to-face, rather than by correspondence or at arm’s length. Both restorative justice and consensus-based justice stress respect for all participants as a core process value, as well as respect for the outcomes of the process. Flexibility—of both process and outcomes—is of central importance.

3.6.1 Participation

Much of what has already been said above about restorative justice is equally applicable to consensus-based justice and need not be repeated. Mediators who view mediation as primarily an opportunity to enhance communication focus their efforts on paraphrasing and reframing each party’s expression of needs, to provide explicit acknowledgment and validation. Some authors set out an understanding of acknowledgment that they describe as recognition. [60] Recognition by one party of the needs and goals of others is the quid pro quo of personal empowerment. While recognition may be tacit, open recognition of another disputant’s needs and interests generally reflects a changed understanding, however subtle, on the part of the speaker and, as a consequence, a reassessment of, or a re-orientation to, the problem that has caused the dispute. [61]

This type of re-orientation may be essential to unleashing the transformative effects of the mediation and other consensus-based justice processes.

3.6.2 Respect for all participants

Respectful listening, acknowledgment and recognition can be expanded into a broader principle of civility and courtesy between all participants in negotiations. [62] It is a key value of consensus-based justice to ensure that all participants are treated respectfully. While always a challenging proposition, respect is perhaps easier to maintain as a structural equality value in non-criminal processes.

3.6.3 Fair treatment

People want to be treated fairly. Perceptions of fair treatment in the process itself are as important as actual outcomes when disputants come to appraise dispute resolution processes. [63] While there is an obvious relationship between a sense of fair process and a welcome outcome, this research suggests that these judgments are independent. [64]

Research shows that perceptions of fair treatment are as important as outcomes when disputants come to appraise dispute resolution experiences. [65] Moreover, research shows that there are higher levels of compliance with court orders when, in the view of the disputants, the process is a fair one [66] and that a feeling of procedural fairness may enhance perceptions of apparently negative outcomes, described as the “cushion effect.” [67] Similarly, there are those whose negative experience of process persists, notwithstanding a good outcome. [68] Preference for procedural fairness, as well as the identification of the factors that make up procedural fairness, appears fairly consistent across a range of cultural contexts. [69] Recent work in the mediation field has suggested that for some disputants, having control over a process, especially the expression of their particular voice, has value in itself. [70]

3.6.4 Respect for agreed outcomes

As with restorative justice, a key practical element of consensus-building in a consensus-based approach is the voluntary acceptance of agreed outcomes and compliance with them. In non-criminal matters, there are a variety of ways in which agreements reached in mediation or similar processes can be formalized by court order, enabling the parties to bring themselves within the aegis of judicial enforcement measures. However, since consensus-based justice emphasizes a healthy process, relationship restoration and forward-looking outcomes, many of the elements of an agreed outcome (for example, how these parties will treat one another in the future or how they have agreed to get past their conflict) are not readily monitored or enforceable. This makes an authentic commitment and a desire to maintain the outcomes—perhaps with some self-monitoring— especially important.

3.6.5 Flexibility of process and outcomes

Finally, as with restorative justice, consensus-based justice adopts a commitment to the flexibility and responsiveness of both process and outcomes. This flows naturally from the emphasis placed by both models on the emergence of effective resolution within a pre-existing context. The process of developing a resolution must also reject a rigid procedural approach, both to reduce unnecessary formality and to enable the appro­priate process model to emerge for these parties and this conflict.

Process Values for Consensus-based Justice

• Participation

• Fair treatment

• Respect for all participants

• Respect for agreed outcomes

• Flexibility of process and outcomes

3.7 SUMMARY

The growth in consensus-based justice processes in Canada has been quite remarkable over the past two decades. Programs have developed in most jurisdictions and in many different fields. For the most part, these programs have developed in an ad hoc way; in some jurisdictions, for example, mediation of some civil disputes is mandatory, in others it is strongly encouraged, while in still others there are disincentives to enter into mediation. Notwithstanding the ad hoc nature of the development of consensus-based justice, there has emerged a set of objectives and core process values. As in restorative justice, at the root of consensus-based justice processes is the value of participation. Consensus-based justice processes also allow Canadians a choice in deciding how to resolve their conflicts. To this extent, these processes encourage the development of a healthy democracy.

1. C. Menkel-Meadow, “The Transformation of Disputes by Lawyers: What the Dispute Paradigm Does and Does Not Tell Us” (1985) 25 Missouri Journal of Dispute Resolution 1 at 3.

2. See, for example, K. Braid, “Arbitrate or Litigate: A Canadian Corporate Perspective” (1991) 17 Canada–US Law Journal 465.

3. For example, the Civil Litigation Evaluation Project, an extensive empirical study of civil litigation conducted during the 1980s by leading American academics, estimated that 22 percent of plaintiffs who paid their lawyers on an hourly basis paid more in legal fees that they recovered in litigation. See D.M. Trubek, A. Sarat, W. Felstiner, H.M. Kritzer and J.B. Grossman, “The Costs of Ordinary Litigation” (1983) 31 UCLA Law Review 72 at 112.

4. Ontario Civil Justice Review, Civil Justice Review: Supplemental and Final Report (Toronto: Ministry of the Attorney General, 1996).

5. For a short review, see E. Zweibel, “Hybrid Processes: Using Evaluation to Build Consensus” in J. Macfarlane, ed., Dispute Resolution: Readings and Case Studies, 2^nd ed. (Toronto: Emond Montgomery, 2003) at 587–588.

<6. See, for example, J. Macfarlane, Court-based Mediation in Civil Cases: An Evaluation of the Toronto General Division ADR Centre (Toronto: Ontario Ministry of the Attorney General, 1995) at 4–13; and R. Hann, C. Barr and Associates, Evaluation of the Ontario Mandatory Mediation Program: Final Report—The First 23 Months (Toronto: Ontario Queen’s Printer, 2001) at chapter 3.

7. R.J. Gilson and R.H. Mnookin, “Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation” (1994) 94:2 Columbia Law Review 509.

8. See J. Macfarlane, “Culture Change? A Tale of Two Cities and Mandatory Court-connected Mediation” (2002) 2002:2 Journal of Dispute Resolution 241; and J. Macfarlane, Building on “What Works”: An Evaluation of the Saskatchewan Queen’s Bench Mediation Program (Regina: Saskatchewan Justice, 2003).

9. M.L. Coates, G.T. Furlong and B.M. Downie, Conflict Management and Dispute Resolution Systems in Canadian Non-unionized Organizations (Kingston: Industrial Relations Centre, Queen’s University, 1997).

10. See, for example, the attitudes noted in J. Lande, “Getting the Faith: Why Business Lawyers and Executives Believe in Mediation” (2000) 5 Harvard Negotiation Law Review 137; and J. Lande, “Failing Faith in Litigation? A Survey of Business Lawyers and Executives Opinions” (1998) 3 Harvard Negotiation Law Review 1.

11. Apology is often assumed to be an admission of liability that would void insurance coverage under standard insurance protocols. Case law on whether an apology is conclusive in establishing liability is inconclusive. In California and Massachusetts, legislative reform has been enacted to ensure that apologies can be made without compromising liability; see Annotated Laws of Massachusetts, ch. 233, § 23D and West’s Annotated California Code § 1160.

12. Farm Debt Mediation Act, S.C. 1997, c. 21.

13. Canadian Human Rights Act, R.S.C. 1985, c. H-6.

14. Ibid., s. 48.3 (2)(b).

15. Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.).

16. Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.

17. Bankruptcy and Insolvency General Rules, C.R.C., c. 368, s. 105(1).

18. Canadian Environmental Assessment Act, S.C. 1992, c. 37.

19. Ibid., s. 2.

20. Canada Labour Code, R.S.C. 1985, c. L-2, s. 70.1.

21. The Federal Mediation and Conciliation Service (FMCS) is included in evidentiary provisions of the Status of the Artist Act, S.C. 1992, c. 33, s. 60(2), and it seems likely that legislated involvement of the FMCS will increase with further uptake of alternative dispute resolution (ADR) mechanisms within federal departments.

22. Petroleum and Natural Gas Act, R.S.B.C. 1996, c. 361. The Board has the authority to undertake mediation and arbitration activities over land-access disputes involving mineral extractions in the province.

23. Nisga’a Final Agreement Act, S.B.C. 1999, c. 2. Appendices, Article 10.3.

24. Commercial Arbitration Act, R.S.B.C. 1996, c. 55.

25. International Commercial Arbitration Act, R.S.B.C. 1996, c. 233.

26. UNCITRAL Model Law on International Commercial Arbitration, 1985.

27. Supra note 25, s. 30(1).

28. UNCITRAL Model Law on International Commercial Conciliation, 2002.

29. Code of Civil Procedure, R.S.Q. 2001, c. C-25.

30. Gordon, M.L., “‘What Me, Biased?’ Women and Gender Bias in Family Law” (2001) 19:1 Family Law Quarterly 53.

31. Supra note 29, s. 814.6.

32. Supra note 29, s. 814.8.

33. Supra note 29, s. 814.9.

34. Family Law Act, S.N.W.T. 1997, c. 18, s. 58(1), s. 58(1).

35. Family Law Act, R.S.O. 1990, c. F-3, s. 3(4).

36. Municipal Government Act, R.S.A. 2000, c. M-26, ss. 117(2) and 118(1)(a).

37. Local Government Act, R.S.B.C. 1996, c. 323, s. 813.09.

38. Ibid., s. 802.3.

39. See also the International Centre for the Settlement of Investment Disputes (ICSID) that administers a program of dispute resolution between countries and investors. Online: http://www.worldbank.org/icsid/.

40. ADRIC’s educational requirements include the completion of at least 80 hours of mediation theory and skills training in programs approved by the Institute, as well as 100 hours of study or training in general dispute resolution. General programs can include areas such as the psychology of dispute resolution, negotiation, public consultation, mutual gains bargaining, communication, management consulting, conflict management, or specific substantive areas such as law, psychology, social work and counselling. There is also an alternative process for applicants who can show the Regional Accreditation Board that they have satisfied or exceeded the educational requirement through proven skills and competency, longevity in practice and recognition or recommendation by peers. Applicants must also demonstrate practical experience by conducting at least ten mediations in which they were either the sole mediator or at least five separate mediations in which they were the mediation chairperson, and at least five of these had to be fee-for-service activities. ADRIC must also be satisfied that a skills assessment has taken place and that the applicant has demonstrated competency in the process of mediation.

41. To be admitted to the Civil Roster, a mediator must have at least 80 hours of core education in conflict resolution and mediation theory, and skills training; 100 additional hours of training in dispute resolution or in a related field; knowledge of Supreme Court procedures; letters of reference; insurance coverage; and completion of a minimum of ten mediations as the primary mediator. Admission to the Family Roster has similar requirements, but with a concentration in practical family mediation and at least 50 mediations as the primary mediator, in which 40 were family related. An alternative route can be taken by qualifying first with Family Mediation Canada.

42. The four organizations are the Chambre des notaires du Québec (Chamber of Notaries of Quebec), the Ordre des comptables agréés du Québec (Order of Chartered Accountants of Quebec), the Ordre des évaluateurs agréés du Québec (Order of Chartered Appraisers of Quebec) and the Ordre des ingénieurs du Québec (Order of Engineers of Quebec). Qualification and maintenance of the title of accredited mediator requires that an individual have five years of membership in one of the partner organizations, 40 hours of training at an accredited institution, 30 hours of continuing relevant education within five years of becoming accredited, and performance of at least three mediations within five years of becoming accredited. IMAQ is also a regional member of ADRIC.

43. Guidelines detail the role of the Committee and set out the requirements for membership on the Roster. Section 3 lists rules for mediator selection, which include personal qualities that determine mediator effectiveness, a minimum of 80 hours of training in core subject areas, being a member or retired member

of the local bar or showing substantial knowledge of the court process, and having acted as a sole mediator in at least five interest-based mediations over a five-year period. Maintaining a position on the Roster requires that a member has acted as a mediator at least twice in the previous year, provide minimum insurance coverage of $1 million, and attend any continuing education programs as directed by the Committee.

44. D. McGillis, Community Dispute Resolution Programs and Public Policy (Washington, D.C.: National Institute of Justice, 1988).

45. Originally an amendment to the Queen’s Bench Act, R.S.S. 1978, s. 54(2)(1), and subsequently in the Queen’s Bench Act, S.S. 1998, c. Q-1.01.

46. Practice Direction Concerning Alternative Dispute Resolution Pilot Project in the Ontario Court, 16 O.R. (3d) 481.

47. Ontario Rules of Civil Procedure, O. Reg. 194/90, Rule 24.1.

48. See the “Notice to Mediate” (B.C. Reg. 127/98) under the Insurance (Motor Vehicle) Act, R,S,B,C. 1996, c. 231, s. 44.1.

49. See, for example, O. Reg. 194/90 (Ontario Rules of Civil Procedure), Rule 77, (non-family civil case management).

50. See, for example, P. Tesler, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation (Chicago: American Bar Association Family Law Section, 2001); J. Lawrence, “Collaborative Lawyering: A New Development in Conflict Resolution” (2002) 17 Ohio State Journal on Dispute Resolution 431; and T. Sholar, “Collaborative Law - A Method for the Madness” (1993) 23 Memphis State University Law Review 667.

51. See J. Lande, “Possibilities of Collaborative Law” [unpublished paper]; and J. Macfarlane, “Collaborating with the Collaborators: Preliminary Results from a Three-year Research Study” (prepared for delivery at the American Association of Law Schools, Washington, D.C., 2003).

52. See, for example, S. Clarke, E. Ellen and K. McCormick, Court-ordered Civil Case Mediation in North Carolina: Court Efficiency and Litigant Satisfaction (Chapel Hill: Institute of Government, University of North Carolina, 1995).

53. See also J. Macfarlane, “What Does the Changing Culture of Legal Practice Mean for Legal Education?” (2001) 20 Windsor Yearbook of Access to Justice 191.

54. See Macfarlane, supra note 8 at 241; J. Lande, “How Will Lawyering and Mediation Practices Transform Each Other?” (1997) 24 Florida State University

Law Review 839; and A. Zariski, “Disputing Culture: Lawyers and ADR” (2000) 7:2 Murdoch University Electronic Journal of Law. Note that in collaborative family lawyering, the retainer agreement explicitly requires full and complete disclosure of all relevant information.

55. G. Chornenki, “Mediating Commercial Disputes: Exchanging ‘Power Over’ for ‘Power With’” in J. Macfarlane, ed., Rethinking Disputes: The Mediation Alternative (Toronto: Emond Montgomery, 1997).

56. See, for example, D. Lax and J. Sebenius The Manager as Negotiator: Bargaining for Competitive Gain (New York: Free Press, 1986); and C. Menkel-Meadow, “Towards Another View of Legal Negotiations: The Structure of Problem-solving” 31 UCLA Law Review (1984) 754.

57. A view often associated with the transformative models of mediation, epitomized by the work of professors Bush and Folger. R.A. Bush and J.P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (San Francisco: Jossey-Bass, 1994).

58. B. Mayer, The Dynamics of Conflict Resolution (San Francisco: Jossey-Bass, 2000).

59. In contrast, some proponents of consensus-based justice would argue that only a significantly enhanced relationship is a satisfactory outcome and that the resolution of the original problem is far less important—a distraction even— from the real purpose of a participatory process. This is the argument made by Bush and Folger (supra note 56 at 33–78) and rebutted by Carrie Menkel-Meadow in her review, “The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices” (1995) 11:3 Negotiation Journal 217.

60. Bush, supra note 56 at 28–40.

61. Bush, supra note 56 at 89–92.

62. E.A. Lind and T. Tyler, The Social Psychology of Procedural Justice (London: Plenum Press, 1992) at 109. For an unusually explicit professional standard on civility, see Rule 10.035 of the Florida Rules for Court-appointed and Certified Mediators (1998), which reads: “a mediator shall be patient, dignified and courteous to all participants in the mediation.”

63. J. Thibaut, L. Walker, S, LaTour and S. Houlden, “Procedural Justice as Fairness” (1974) 26 Stanford Law Review 1271; J. Thibaut, and L. Walker, Procedural Justice: A Psychological Analysis (New York: Erlbaum, 1975).

64. Similar results are reported from a study asking citizens for their appraisal of (1) the fairness of government policy and (2) their personal benefits (specifically regarding taxation and benefits). See T. Tyler, K. Rasinski and K. McGraw, “The Influence of Perceived Injustices on the Endorsement of Political Leaders” (1985) 15 Journal of Applied Social Psychology 700.

65. Supra note 62. See also T. Tyler, “The Role of Perceived Injustice in Defendants’ Evaluations of Their Courtroom Experience” (1984) 18 Law and Society Review 51.

66. See, for example, C. McEwen and R. Mainman, “Small Claims Mediation in Maine: An Empirical Assessment” (1984) 33 Maine Law Review 244: and C. McEwen and R. Maiman, “Mediation in Small Claims Court: Achieving Compliance Through Consent” (1984) 18 Law and Society Review 11.

67. T. Tyler and E.A. Lind “A Relational Model of Authority in Groups” in M. Zanna, ed., Advances in Experimental Social Psychology, vol. 25 (New York: Academic Press 1992); and Thibaut, supra note 62.

68. For example, a significant number of litigants in the Ontario General Division interviewed for a 1995 study expressed dissatisfaction with the process, notwithstanding a positive outcome to their cases. More than one-third (36 percent) were dissatisfied with the “fairness” (described as opportunity to provide input to the counsel, time to speak and be heard) of the process. Furthermore, only 8.5 percent described themselves as completely satisfied with the outcome, reflecting perhaps the fact that further enforcement steps were often necessary after securing a favourable judgment. In some cases, this seemed to overshadow the final result. For example, one successful litigant told the interviewer, “It’s taken so long, and we’re still waiting. It’s taken its toll on myself and my family. Nothing could have prepared us for this process.” J. Macfarlane, Court-based Mediation in Civil Cases: An Evaluation of the Toronto General Division ADR Centre (Toronto: Ontario Ministry of the Attorney General, 1995).

69. See, for example, K. Leung and E.A. Lind, “Procedural Justice and Culture: Effects of Culture, Gender and Investigator Status on Procedural Preferences” (1986) 50 Journal of Personality and Social Psychology 1134; E.A. Lind, Y.J. Huo and T. Tyler, “... And Justice for All: Ethnicity, Gender and Preferences for Dispute Resolution Procedures” (1994) 18 Law and Human Behaviour 269.; and Lind, supra note 61 at 107–111.

70. T. Tyler, K. Rasinki and N. Spodick, “The Influence of Voice on Satisfaction with Leaders: Exploring the Meaning of Process Control” (1985) 48 Journal of Personality and Social Psychology 72. See also Bush, supra note 56 at 84–89.