There are other approaches that can allow people to settle disputes without having to go to court.
Alternative dispute resolution
Alternative Dispute Resolution (ADR) traditionally refers to the wide variety of methods used to resolve conflicts and disputes outside the courtroom. It includes both informal, consensual processes such as negotiation as well as formal rights-based processes such as litigation.
With ADR, people can usually settle their differences in ways that are more informal, less expensive, and often quicker than formal court proceedings. Some parties prefer confidentiality and to have greater control over the selection of individuals who will decide their dispute and the rules that will govern the proceedings. The main ADR processes include:
- An independent third party is brought in to help the parties negotiate an agreement.
- The parties agree to refer the dispute to a third party for judgment.
- The parties get together and sort out a problem between themselves.
The parties may also decide to seek the opinion of an expert chosen by both of them.
Agreements reached through mediation and negotiation are consensual, so they generally cannot be appealed. In the case of arbitration, there is a limited ability to appeal that depends on the terms of the arbitration agreement and the applicable legislation.
As with administrative tribunals, the courts and ADR work together. The courts themselves often make use of ADR. For example, some provinces now insist on mediation as part of the litigation process. However, the court system remains the appropriate forum for trying serious or violent crimes, and is also an option when parties to a dispute reject mediation or arbitration.
In sentencing circles, which can be part of the court process but are not separate courts in and of themselves, the court invites interested members of the community to join the judge, prosecutor, defence counsel, police, social service providers, and community elders – along with the offender, the victim, and their families and supporters – to meet in a circle format to discuss:
- the offence;
- the factors that might have contributed to it;
- sentencing options; and
- ways of reintegrating the offender into the community.
Sentencing circles can be a valuable way of getting input and advice from the community to help the judge set an appropriate and effective sentence. Often the circle will suggest a restorative community sentence involving some form of restitution to the victim, community service, and treatment or counselling, and/or a period of custody. It is important to note, however, that the judge is not bound to accept the circle’s recommendations.
Sentencing circles have been used in much of the country, mostly at the provincial/territorial court level, in minor criminal cases involving Aboriginal offenders and their victims. Various Supreme Court of Canada decisions have interpreted changes to the Criminal Code that instructed courts to consider alternative sentences for all offenders, and to pay particular attention to the circumstances of Aboriginal offenders. The Supreme Court found that sentencing judges must examine the unique factors which may have played a part in bringing a particular Aboriginal offender before the courts, and the types of available sanctions and sentencing procedures (including sentencing circles) which may be appropriate in light of the offender’s Aboriginal heritage or identity.
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