MacDonald, who’s been active in dispute resolution for 15 years, says the idea for the roadmap came from an advanced mediation course he took in February presented by Michael Fogel.
Over the years, Alberta’s litigation system has been criticized for being too cumbersome, too slow, too expensive, and too unresponsive for both litigators and their clients’ needs. According to the new Rules of Court, they challenge counsel to “identify the issues in dispute and facilitate the quickest means of resolving a claim at the least expense.” The rules are to be used “to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable.”
“The roadmap helps litigators and their clients get from point A to a desired point B. However, because there are always bumps in the road, the line from point A to point B is not always straight. The roadmap acts as a navigation tool to help all parties involved deal with those bumps,” says MacDonald.
There many advantages to using it include better education of clients on the litigation and resolution process. “It facilitates more meaningful dialogue among the parties which will improve the chances of an agreed upon resolution. The roadmap also provides clients with greater certainty of procedures in the litigation process,” he says.
However, MacDonald says early facilitation does not necessarily mean the parties commit to a settlement. “Early negotiation focuses on how the parties will move toward a resolution and the basis for a potential agreement. It is not an agreement that defines the outcome. Devising a litigation plan ahead of time means fewer diversions should the matter proceed to trial.”
So far, litigators and clients have shown interest in the roadmap and are seeing merit in the process. Richard J. Gilborn, a partner and senior litigator at Caron & Partners LLP, says he has tried MacDonald’s roadmap and would be more than happy to try it again.
“I used the roadmap to resolution for a commercial litigation matter that looked like it could have been a very long, complex, expensive matter that would have wound up at trial. I found the process dramatically reduced the amount of time it would have normally taken to exchange documents. As well, after Mr. MacDonald spent some time with both sides prior to the mediation portion explaining how the process works, we entered into negotiations where the clients did most of the talking, and towards the end of the caucusing, the talks resulted in a settlement.”
MacDonald says he has already talked with various groups of lawyers about his roadmap and plans to engage more lawyers in the future. “The challenge will be to get litigators to take one file and try it. My goal is to find a way to make litigation in Alberta more efficient and more cost-effective.”