Extrajudicial Justice

By Mihail Salariu

People usually turn to the courts because they need a conflict resolved. A common scenario is one where a party has a complaint against another and their demand is resisted by arguing for something different, counter-claiming, or silence. If the dispute is over a matter that affects the public interest, like environmental or constitutional issues, it is best addressed in a public forum, like the courts of the justice system. This idea was famously championed by Owen Fiss in Against Settlement (1984) and continues to hold true nearly 40 years later. It is a common phrase to hear that a court “dispenses justice”. In a public interest type case, “justice” would ideally provide a fair resolution for the parties, while taking into account the needs of the public. Notably, “public consideration” is not expected of an alternative dispute facilitator. However, in cases with limited collateral effect, does the resolution require the same “justice” yardstick?

A stand-alone and abstract conception of justice need not be supported in the same way for a court decision and an out-of-court resolution. One might be tempted to suggest that the court’s evolution (specifically the developments in rules, procedures and protocols that dictate the process) shows a path that leads to ever-improving fairness and, in-turn, justice. Idealism aside, the court’s process is not the only way to ensure justice is served. Imposing additional standards on the alternative dispute resolution (“ADR”) process, to inch it closer towards the standards of the traditional courts, are likely to undermine several of the benefits that ADR participants appreciate about this option. Flexibility and its ensuing benefits are likely to be early casualties of standardization. Changes that attempt to better align ADR and the court process also undermine the utility of these alternative mechanisms to the justice system itself (namely, easing the burden by resolving cases before they reach a court). ADR options are not ideal for all types of conflicts, but if used appropriately they can be a beneficial tool, potentially satisfying even a justice-seeking participant. Pillars like the impartiality of the facilitator, an awareness of unequal bargaining powers and active engagement with accessibility should guide the evolution of the ADR process. One should be mindful not to merely duplicate the process of the courts in search of providing fairness and consistency, less we find ourselves with two bogged-down systems, unable to fulfill the needs of the population.

Neither the state-run courts nor ADR can achieve the goal of justice for all on their own. Both are needed to complement each other and to help tailor solutions to different types of conflicts. The results each produces must satisfy some sense of justice. Consensus-based resolutions to disputes are likely to achieve outcomes, in the least, no less just than pursuing a matter in court. Practical realities make it unlikely that society can provide sufficient resources to courts to displace the need for ADR mechanisms. The complexity and formality of the court system make it ideal for some matters, but unnecessary for many others. As former SCC Chief Justice Brian Dickson commented, “if ADR is handled carefully, then it holds the potential for substantial improvements to the manner in which justice is delivered in Canada.” (ADR, The Courts and The Judicial System: The Canadian Context (1994))