Canada's efforts to resolve and manage legal disputes have included mini-trials, pre-trial conferences, settlement conferences, as well as binding and non-binding JDR. The Court of Appeal in Quebec and the Court of Queen's Bench of Alberta initiated ADR efforts in the mid-1990s. Although there are differences among some local and provincial court practices, there is a clear commitment to move away from purely adversarial to more collaborative means of resolving legal disputants. But how did this collaborative drive emerge?

“JDR has a common legal root in both the U.S. and Canada. In the U.S., it is Rule 16 of the U.S. Federal Rules of Civil Procedure (FRCP) on pre-trial conferences, scheduling and management established in 1938. One of the purposes of a pre-trial conference in any jurisdiction is to facilitate settlement, and the statutory authorization to open up extrajudicial dispute resolution techniques comes under the umbrella of pre-trial management—or settlement conferences. Particularly, Rule 16 (a)(5) provides that the judge may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference with a purpose “facilitating settlement.” One of the most pressing questions since the emergence of settlement conferences is how much judges should be actively engaged in facilitation and what was the appropriate role judges should embrace (Menkel-Meadow 1985). As stated by Maurice Rosenberg, the pre-trial conferences derived from Rule 16 were, for some states mainly to clarify issues and improve the conditions for an eventual trial (trial orientation), whereas, for other states, the primary objective was to get rid of the trial and settle (settlement orientation). The pretrial conference “confronts the judge with so many choices as to the intensity of his participation, and does so in an atmosphere less inhibited than at the trial (Rosenberg 10-11, 1964). These choices aimed at lowering delays in case resolution, handling cases more effectively, and inviting more settlements. Encouraging judges to be actively involved in settlement discussions is not restricted to the US. In England and Wales, Rule 1(4)(2)(f) of the Civil Procedure (1993) establishes the duty to manage the cases by “helping the parties to settle the whole or part of the case” (UK Civil Procedure Rules 1998). The introduction of the Civil Procedure Rules 1998 has encouraged experimentation in negotiation settlements and court mediation projects (e.g., National Mediation Helpline and court-referred mediations).