The Ministry of Justice is committed to a justice and conflict resolution environment which includes a wide range of dispute resolution options. These options include:
- established adjudicative methods of dispute resolution such as litigation and arbitration;
- collaborative methods of dispute resolution such as conciliation, facilitation, negotiation, mediation and other consensus based processes;
- methods based on traditional practices or tailored to the cultural diversity of the population;
- conflict management systems and any organizational or administrative method of minimizing or preventing conflict or encouraging efficient resolution of conflict.
The justice and conflict resolution environment envisioned by the Ministry of Justice is based on the following principles:
- Access: that appropriate options for preventing conflicts and resolving them at every stage of a dispute be available and easily accessible.
- Community Participation: that conflict resolution resources exist within various communities and that these communities, in appropriate circumstances, assume an active role in resolving disputes.
- Individual Satisfaction: that dispute resolution options maximize individual involvement and satisfaction with the process.
- Equality: that dispute resolution processes be structured to balance power inequities between the parties.
- Quality of Resolutions: that settlements be fair and equitable and that the parties honour them.
- Efficiency: that dispute resolution options:
- be well-matched to the dispute,
- be cost-effective, and
- minimize delay in reaching resolution.
- that the public be aware of alternative dispute resolution options;
- that individuals understand how co-operative approaches to dispute resolution work.
A justice and conflict resolution environment in which a range of dispute resolution options is widely available can be achieved. The Ministry’s alternative dispute resolution policy encourages the development of dispute resolution options by incorporating current initiatives and by supporting new directions in alternative dispute resolution. Therefore the Ministry of Justice intends to:
- Apply a continuum of dispute resolution options to resolve disputes in cases where Ministry counsel act for the Government of British Columbia, or for a client Ministry.
- Incorporate alternative dispute resolution options into contracts prepared for the Ministry of Justice and encourage the use of such options in contracts drafted for client Ministries.
- Incorporate uniform alternative dispute resolution options and mechanisms in legislation.
- Establish additional disclosure courts, where conditions warrant.
- Support the establishment of victim-offender reconciliation programs throughout the Province, where conditions warrant.
- Increase adult and youth diversion throughout the Province.
- Develop a Ministry organizational structure capable of co-ordinating:
- consultation with non-governmental dispute resolution agencies, stakeholders, and the community;
- participation in inter-ministry and intergovernmental alternative dispute resolution initiatives;
- program development and funding in consultation with the community;
- research, analysis and evaluation of alternative dispute resolution issues to inform and prioritize ministry policy, program initiatives and decisions;
- the development of a reporting system which catalogues and reviews alternative dispute resolution processes in government;
- the implementation of organizational and administrative structures within the Ministry for the purposes of minimizing or resolving conflict.
- Consult with the Judiciary and the Bar to utilize the existing Rules of Court and to effect changes to the Rules of Court which may incorporate alternative dispute resolution options.
- Support the use of dispute resolution alternatives to litigation in:
- family matters, such as custody, access, maintenance and division of property;
- motor vehicle personal injury claims; and
- other civil matters.
- Recognize and support community-based dispute resolution practices by aboriginal peoples.
- Support educational processes designed to increase the awareness of alternative dispute resolution options and the circumstances in which they are appropriate for the government, the legal profession, and the public.
- Further develop the ADR policy to broaden and encourage the application of dispute resolution options through:
- continuing consultation with dispute resolution stakeholders and advocates;
- promoting the use of alternative dispute resolution options among all ministries and agencies of government;
- promoting the use of alternative dispute resolution techniques in neighbourhood or community disputes;
- identifying and removing barriers to the understanding and use of alternative dispute resolution options;
- supporting multi-party alternative dispute resolution processes such as land use planning,
The following are definitions of some of the terms contained within the Ministry of Justice ADR policy. It is recognized that there are other processes not mentioned in this glossary (e.g. med/arb, medaloa) which are equally useful dispute resolution tools.
Adjudication - Adjudication includes any of the forms of dispute resolution in which the parties to the dispute present proofs and arguments to a neutral third party who has the power to deliver a binding decision, generally based on objective standards. The term subsumes arbitration and litigation.
Arbitration - Arbitration includes any of the forms of dispute resolution involving a mutually acceptable, neutral third party making a decision on the merits of the case, after an informal hearing which usually includes the presentation of evidence and oral argument. The process has four main variations (creating numerous permutations):
- binding or non-binding;
- voluntary or compulsory;
- private, statute-authorized, court-annexed
- one arbitrator or a panel.
Conciliation - Conciliation is an informal process in which a neutral third party is positioned between the parties to create a channel for communications, usually by conveying messages between parties where it is preferable that they do not meet face-to-face, to identify common ground and to eventually re-establish direct communications between the parties, and possibly achieve settlement.
Disclosure Court - Disclosure Court is a formalized process for resolving issues in criminal cases. It differs from the normal provincial court procedure for criminal matters in that it requires both the defence and Crown at the outset of the proceedings to examine issues in the criminal case and account for the decisions they make on the future conduct of that case.
Cases are selected for assignment to Disclosure Court by the Crown Counsel who approves the charge. All indictable (serious) matters (e.g. break and enter, impaired driving causing bodily harm, or sexual assault) are sent for appearance in Disclosure Court.
Crown Counsel ensures that defence receives disclosure of the Crown case at the earliest opportunity. In order for Disclosure Court to be effective, Crown Counsel must ensure that they have all the available information from the police, and victims, and must review the case with a view to proposing dispositions or the resolution of potential issues to the defence counsel by the time of the accused’s first appearance in Disclosure Court.
Diversion - Diversion is a pre-court procedure where a Crown uses his or her discretion on a case by case basis not to prosecute an alleged offender. Instead the alleged offender is referred to an individual or agency (with or without the intervention of a probation officer) with the intent of establishing an agreement by which the prospective divertee undertakes to accept, and is given the opportunity to demonstrate, personal responsibility for the alleged offence.
Facilitation - The object of facilitation is to help a group improve its process for solving problems and making decisions so that it can achieve its goals and increase its overall effectiveness. Although dealing with conflict can be a significant part of facilitation, it is not always the primary focus. In addition, developmental facilitation seeks to help the group permanently improve its process for solving problems. By transferring the skills of the facilitator to the group, the group becomes less dependent on the facilitator.
Mediation - Mediation has some degree of intervention in a dispute or negotiation by an impartial, neutral third party who has no decision-making power. The third party informally assists disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute by structuring the negotiation, maintaining the channels of communication, articulating the interests of each party, identifying the issues and, on occasion, if appropriate, making recommendations on disputed issues. The process may involve counsel, but open communications between the parties as well as between their counsel is encouraged.
Negotiation - Negotiation is any form of communication, direct or indirect, whereby parties who have opposing interests discuss, without resort to arbitration or other judicial processes, the form of any joint action which they might take to manage and ultimately resolve the dispute between them.
Traditional Practices - In terms of this policy, traditional practices are those culturally-based methods which can utilize local community resources in the resolution of disputes within that community.
Victim/Offender Reconciliation Program (VORP) - VORP utilizes trained mediators to facilitate dialogue and reconciliation between victims and those who have committed crimes against them. The main purposes of VORP are to:
- Discuss the offence as well as the feelings, concerns, and consequences for both the victim and offender.
- Reach an appropriate and just agreement. This can include financial compensation, repairing damages, returning property, and apologizing for the harm done.
- Reach some degree of resolution and reconciliation. This is particularly important when the cases involve people in ongoing relationships.