Basics of ADR process

Published May 1, 2003

In the mid-1990s, as the number of lawsuits alleging abuse in native residential schools began to pile up, the concept of an alternative dispute resolution (ADR) process was raised.

Hearings would take place in meeting rooms rather than courtrooms. The setting would be less intimidating for plaintiffs telling painful stories of abuse. Although victims would still have to prove their stories, they would not be subject to aggressive cross-examination by defense lawyers. The arbitrator’s decision would be final, not subject to myriad appeals, so plaintiffs could access compensation faster — an important issue since many former residential school students are elderly.

In 1998 and 1999, the Department of Indian Affairs and Northern Development organized eight ‘exploratory dialogues’ nationwide involving native people, lawyers, church and government representatives. One issue discussed was whether ADR could address the contention that the schools severely damaged aboriginal culture.

After 1999, the federal Department of Justice initiated 12 pilot ADR projects, but culture was not part of the process since loss of culture had not been recognized as a legitimate cause of action by any court and the government said it would compensate only for sexual and physical abuse. To date, no settlements have resulted from the ADR process, which became stalled two years ago as government and churches wrangled over who would pay for the process.

In recent months, ADR has received renewed energy — and further consultation with the affected groups, including natives — after the government agreed last November to pay 70 per cent of proven claims and the Anglican church agreed to pay 30 per cent, up to $25 million. Application forms are being developed and will be ready by late spring, said Nicole Dakin, a spokesperson for the federal Office of Indian Residential Schools Resolution, with the first hearings scheduled to start in the fall. The forms will be on the office’s Web site, but it has not yet been decided how many hearing locations there will be across the country, she said.

To date, said Ms. Dakin, about 630 court settlements have been reached, just 21 of them from judgments.


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