A comparison of the role of the judge in alternative dispute resolution in France and British Columbia
University of British Columbia
Master of Laws - LLM
This thesis analyses legal institutions which appear to be developing in a similar way and reveals the significance of historical, legal and cultural backgrounds. ADR processes are perceived and developed as international and necessarily standardized, or simply as culturally neutral institutions. However, this analysis shows that alternative conflict resolution methods remain culturally embedded. This analysis is based on the role of the judge in ADR in France and B.C. The comparative method seemed appropriate to conduct the analysis as it facilitates a focus on cultural influences which reveals differences in the definition of the judge's role in ADR in both jurisdictions. The first chapter examines comparative law - its nature and objectives, as well as the potential pitfalls. Courts have been chosen as the institutions on which to base our research of the cultural element in ADR because they appear to be culturally embedded. The second chapter attempts to trace historical evolution and political factors which shaped the judicial institution in both jurisdictions. The role of the judge in proceedings is analyzed with particular emphasis on the process of judging. The professional education of judges in both jurisdictions is also examined. To frame the analysis two of the roles of judges which have often been used in the literature are used, namely the role of dispute settlement and the role of policy maker. A third chapter outlines the similar development of ADR in France and B.C. and explores the reasons behind this. Finally, a comparison of the intervention by the judge in enforcing settlement agreements, enforcing arbitration agreements and conducting court mediation is made. The analysis relies on the definition of judges' role as defined by the legislator, and the interpretation of that definition by the courts. It is concluded that, while no absolute pattern of the influence of cultural and historical background on the shaping of the role of the judge in ADR can be identified, this influence exists nonetheless. The similarities between, and the perceived unification of ADR institutions are therefore superficial, as ADR is molded through institutions such as judges, influenced at the same time by the cultural identity of the jurisdictions in which they operate.
Judges.; Comparative law.
Law, Peter A. Allard School of