TABLE OF CONTENTS

PROTOCOLS

• Meeting Parties
• Support Persons and Observers
• Opening Statement By Dispute Resolution Officers (DROs)
• Overcoming Impasses
• Caucuses
• Summaries of Agreement
• Opting-In
• Opting-Out

PROTOCOL - MEETING PARTIES

Toronto

• Check the assigned Alternative Dispute Resolution (ADR) room to confirm that Minister's counsel has arrived. Substantive issues relating to the case should not generally be discussed at this point.
• If an interpreter has been ordered, check for attendance. If the interpreter has not arrived, ask the Case Clerk to call the Interpreter's Unit.
• Shortly before the ADR Conference is scheduled to begin, go to the 2nd floor reception to call the Appellant (and counsel, if the Appellant is represented).
• Escort the Appellant and counsel to the ADR room.
• If the Appellant (and/or counsel, if represented) has not arrived on time, check at reception every five minutes until arrival or a period of thirty minutes has elapsed.
• If the Appellant (and/or counsel, if represented) arrives late, remind them of the importance of a timely start.
• If the Appellant arrives but counsel does not, seek the direction of the party as to whether he or she wishes to proceed. Determine whether, in the circumstances, it is appropriate to proceed.
• If the Appellant does not arrive (or counsel does not arrive and he or she is a necessary participant) consider, as appropriate:
  
  • calling the Appellant or counsel's office;
  • rescheduling to another date;
  • treating the case as a "no show" and referring to "no show" court.
• If Minister's counsel does not appear, call the Citizenship and Immigration Canada (CIC) office at [telephone number].
• If a support person or observer presents, handle in accordance with "Protocol - Support Persons and Observers."
• When all necessary participants are in the room, begin the ADR Conference.

Vancouver

The procedure is as above, except:

• Minister's counsel proceeds to the ADR room.
• After receiving notification that the Appellant (and counsel) have arrived, escort the participants to the ADR room on the other floor.
• If Minister's counsel does not appear, call the CIC office at ………… [telephone number].

PROTOCOL - SUPPORT PERSONS AND OBSERVERS

Support Persons

Note:  "Support Persons" refer to those other than counsel. Given the nature of the ADR process and the limited time available, support persons will not generally participate in the ADR conference. If they are involved, their participation should generally be restricted to answering questions.

• If a support person arrives, deal with their role at the outset.
• Explain that ADR is generally limited to the parties and their representatives and ask the party who brought the support person what the support person's intended role is. The role sought may or may not be appropriate in the circumstances.
• The party may request, for example, that the support person:
  • Participate fully in the ADR session (including speaking in plenary and in caucus);
  • Support the party throughout the ADR session but not play an active role (not speaking in plenary and/or in caucus);
  • Be available for support in caucus only;
  • Be available for support outside the ADR process (for example, by waiting in reception).
• If the party indicates that the support person is there to provide support outside the ADR process, invite the support person to wait in reception and advise that, subject to confidentiality requirements, the party may access the support person during breaks.
• Consider, as appropriate, informing Minister's Counsel of support persons whom the Appellant advises will not be coming into the room but will be waiting in reception.
• If the party wants to pursue having the support person participating in the ADR session or supporting the party in plenary and/or in caucus, ask the support person to sit outside while the issue is discussed. Further explain that Minister's counsel must agree to any degree of involvement of the support person.
• Ask Minister's counsel for his/her views.
• If Minister's counsel consents, advise the support person and proceed. Note that the support person's involvement should not generally involve participation at the table beyond answering questions asked of them. The support person should make an undertaking to that effect.
• If Minister's counsel does not consent, explore whether there is some way to accommodate the interests of the Appellant and Minister's counsel.
• If there is no agreement, exclude the support person. Given the time limitations on ADR sessions, deal with the issue as expeditiously as possible.
• If a support person is involved, ensure that s/he agrees to be bound by confidentiality.

Observers

• If an observer (for example, government official, consultant, or student) requests permission to attend an ADR session, consider the merits and advise.
• If you grant permission, explain that their attendance is conditional upon the approval of the parties and counsel.
• Advise observers that they must not speak or disrupt the ADR in any way and that they must keep any identifying information confidential.
• Seek permission from the parties either in advance of the mediation or upon meeting them at the outset of the ADR Conference and explain the purpose of the observation.

PROTOCOL - OPENING STATEMENT BY DISPUTE RESOLUTION OFFICERS (DROs)

The opening statement made by DROs serves two principal purposes:

• sets the tone for the session and puts the parties and representatives at ease; and
• conveys critical information about the ADR process.

The opening also serves to reduce the power that resides in the Minister's counsel. Noted below are key areas that must be addressed. The italicized portions provide suggested language. DROs should maintain adherence to this language as much as possible to provide consistency in:

• the way in which they conduct ADR sessions; and
• the way in which ADR sessions are conducted generally by DROs within the Immigration Appeal Division (IAD).

Welcome and Introductions

• Welcome parties and representatives.
• Introduce yourself and invite all participants to introduce themselves to each other.
• Address participants by their surnames.
• I'm going to tell you about the ADR process and our various roles and ask some questions of both parties. When I'm finished, Minister's counsel will likely want to ask the Appellant some questions.

Nature of the ADR Process

• This ADR process is provided by the IAD to give you an early opportunity to resolve your case. For the Appellant, it's a chance to tell your story. For Minister's counsel it's an opportunity to review and discuss information relevant to the case.
• If your case does not resolve through ADR, your rights to a hearing are not affected by participation in this ADR session.
• The ADR process is informal.

Roles of the Participants

• As DRO, my role is to assist the parties in discussing the issues raised by the refusal.
• I will not decide the outcome of this case. I will assist the parties to discuss the case objectively and impartially.
• I am a member of the IAD. I am not employed by Citizenship and Immigration Canada (CIC) as Minister's counsel is. If this case goes to hearing, another person will hear it without receiving information from me. The hearing will be a fresh start.
• I may, however, provide you with an evaluation of the case - what I think would happen if the case went to hearing.
• Please feel free to ask questions of me now or at any time.
• Minister's counsel is the representative of the Minister of CIC who is required to uphold the immigration laws of Canada and has discretion to decide whether to recommend that this appeal be allowed.
• The original decision refusing the Applicant was made by a visa officer overseas - not by Minister's counsel.
• Appellants are encouraged to participate fully in the ADR session by providing relevant information and discussing the merits of their case with Minister's counsel.
• Appellants' counsel are also encouraged to play a meaningful role by supporting the Appellant, assisting the Appellant to bring forward information that would be helpful, and providing their perspective on the case.

Confidentiality

• [Hand out sheet entitled "Explanation of Confidentiality"].
• The ADR session is confidential. What is said and produced for the ADR session is not to be used by one party against the other if the case goes to hearing.
• For example, Minister's counsel cannot introduce something said at the ADR Conference to cross-examine the Appellant at a hearing. However, information you provide can be disclosed if it is independently available, relates to an offence under Canadian Immigration legislation or a breach of the Immigration Appeal Division Rules, or you consent.
• Each participant is free to take notes. Minister's counsel and the Appellants' counsel may share notes or other information with their colleagues. My notes will not go into the hearings file. You should not use laptop computers or recording devices for purposes of taking notes during an ADR Conference unless I am satisfied that special circumstances exist.
• Do you have any questions about what I have said or about the sheet entitled "Explanation of Confidentiality"?

Caucus

• I will likely caucus (have a private meeting) with each party at some point during the ADR session.
• Caucuses are used most often to discuss each party's views about the prospects of settlement and options for settlement.
• I may share what you say to me in caucus with the other party if I think it would be helpful unless you specifically ask me to keep certain information confidential.
• Feel free to ask for a caucus with me at any time or, Appellant, to request a private meeting with your counsel. Anything you say at that meeting is completely confidential.

Potential Outcomes

• There are a number of potential outcomes in this case.
• If Minister's counsel is satisfied with the information provided, s/he will recommend that the appeal be allowed and the sponsorship application will continue to be processed. The standard that Minister's counsel will use is the likelihood of the case being allowed at a hearing.
• The recommendation is subject to the approval of the tribunal.
• If Minister's counsel is not satisfied, the Appellant has two choices; namely, to withdraw the appeal or to proceed to hearing.

Other Matters

• The ADR session has been scheduled for approximately one hour. If you need a break at any point, please let me know.
• The session will work better if parties listen carefully to each other. If you have a question that comes to mind while the other person is speaking, please hold it until the other person is finished.
• Are there any questions about the process?

Introductory Questions

• Questions must be tailored to the case. The following are examples:
• For Appellant:
  
  • Why is it important to you that your relative come to Canada?
  • Tell us about your relationship and how it developed.
  • What is your understanding as to why your sponsorship application was refused?  What is your understanding of the issues?
• For Minister's counsel:
  • What are your main concerns in this case?
  • Why is it important that we canvas this case thoroughly?

EXPLANATION OF CONFIDENTIALITY

ADR is a confidential process. If your case does not settle through ADR, what is said during the ADR process cannot be used by either party against the other during the hearing. However, information you provide can be disclosed if it is independently available, relates to an offence under Canadian Immigration legislation or a breach of the Immigration Appeal Division Rules, or you consent.

Documents that you use for the ADR Conference will not go on the hearing file unless you agree. Each participant may take notes at the ADR Conference. Your counsel and Minister's counsel may share the information they get through this process with their colleagues. DROs will not share information with members who could hear your case if it does not resolve. An agreement to resolve is not confidential.

PROTOCOL - OVERCOMING IMPASSES

You may encounter impasses during the ADR session. Impasses may occur at any stage of the process. They may be caused by psychological unwillingness to settle a dispute, lack of trust, poor communication, unrelated interests, intransigence, the undesirability of solutions under consideration etc. Impasses may be overcome through the actions of the parties or through your assistance. Some of the techniques useful for overcoming impasses include:

• Improving lines of communication
• Reality-checking
• Caucusing
• Option generation
• Adjournment
• Use of outside expert/evaluator
• Modifying the dispute resolution process

PROTOCOL - CAUCUSES

Caucuses are generally held because of internal dynamics relating to:

• Substantive issues (e.g., seeking private evaluation from DRO, highlighting concerns about other party's case, exploring options, breaking impasses);
• Process issues (e.g., educating a party about the process; exploring any discomfort with the process, addressing improper conduct, preventing premature commitment to a position);
• Relationship issues (e.g., to provide relief when emotions are running very high).

Practice Guidelines:

• In your opening statement, advise the parties of the possibility of caucusing, describe a caucus, and explain the confidentiality rule (see "Protocol - Opening Statement by DRO").
• Hold as much of the ADR session as possible in plenary. Hold caucuses when one is requested by a party or counsel or when you have a particular reason for holding a caucus. You should generally refrain from holding caucuses until the parties have had a sufficient opportunity to interact and develop rapport.
• If you caucus with one party, ensure that you caucus with the other party afterwards.
• If a party asks to caucus alone with his/her counsel, arrange for such as soon as is practicable.
• Similarly, if a party asks to caucus with you, arrange for such as soon as is practicable.
• If a party is represented, caucus with party and counsel together unless they request otherwise. If you think it is necessary to speak to counsel alone (e.g., to speak about a conduct issue), ensure that the client is agreeable.
• When you decide to caucus with one party, take the following steps:
  • Announce in plenary that you are going to hold a caucus;
  • Identify the party you will meet with first;
  • Describe the purpose of the caucus;
  • Estimate the length of time you intend to spend in caucus; and
  • Provide some suggestions as to what the other party might consider while you are away.
• In each and every caucus session, repeat the confidentiality rule and clarify it if asked. Advise that you may share information provided in caucus with the other party if you think it will be helpful, unless the party specifically instructs you not to. If the parties are hesitant about the confidentiality rule, advise parties that they are free to select a confidentiality rule that requires you to obtain their approval before sharing information if they prefer.   
• In accordance with general practice, evaluations should generally be delivered in caucus to allow the strengths and weaknesses of each party's case to be reviewed privately.
• You will generally initiate a caucus with Minister's counsel first.
• When caucusing with Minister's counsel, ask for his/her view of the case before offering any comments yourself.
• Provide an evaluation if requested by Minister's counsel. If it is not requested, offer to provide one if appropriate.
• Do not provide legal advice. You may provide legal information about particular legislative provisions or case law or your view of the likelihood of success if the case proceeds to hearing, but should not advise parties as to how to proceed in the particular circumstances of their case. You may suggest options for resolution if the party is amenable to them.
• If the caucus session extends beyond the time you estimated, advise the Appellant of your revised estimate.
• Ensure that you caucus with the Appellant no matter what action you expect Minister's counsel to take. This is an important component of the obligation to act in an impartial and even-handed way.
• If Minister's counsel has concerns about the case, use the caucus with the Appellant to relay Minister's counsel's concerns and enquire as to whether there is any additional information to share.
• If additional information is provided, either take it back to a caucus with Minister's counsel to discuss or return to plenary to canvas.
• If Minister's counsel does not have concerns and is prepared to consent, caucus with the Appellant to advise as to the process.
• Provide an evaluation if requested by the Appellant or counsel. If it is not requested, offer to provide one if appropriate.
• Each time you complete a caucus with a party, advise the other party (within the bounds of confidentiality) of what was accomplished in the previous caucus. This need not be a full restatement of what was said in caucus.
• Request that Minister's counsel return to the plenary session following the final caucus whether or not they are willing to share much information from caucus.
• In plenary, invite Minister's counsel to advise the Appellant as to his/her view of the case and whether s/he will consent or not. Minister's counsel should provide a view of the case, in general terms. If not prepared to consent, Minister's counsel may, for example, indicate that there are credibility issues without giving details as to inconsistencies.
• If there is no consent and withdrawal merits discussion, Minister's counsel should remain.
• It is preferable that Minister's counsel also remain for scheduling.
• If the Appellant wishes a debrief, Minister's counsel can be released.

PROTOCOL - SUMMARIES OF AGREEMENT

• During the opening statement, the DRO is to explain that if Minister's counsel agrees to recommend a consent to the appeal, a Summary of Agreement form must be completed and taken to a tribunal member for endorsement in the form of an order to check for completeness and correctness.
• If Minister's counsel consents to an appeal at the ADR session, a "Summary of Agreement" form is prepared by the DRO in consultation with the parties, to reflect the reasons for the consent.
• The Summary of Agreement is a form of recommendation to the IAD.
• The appeal still has to be allowed through an order signed by a member of the IAD in chambers.
• The member who reviews the agreement must not have been the DRO in the case or have had any involvement in it. The separate roles of members as DROs and as decision-makers must be preserved.
• The main reason for drafting the Summary is to ensure transparency in decision-making. The document is also used by CIC to provide the visa post with a rationale for consenting to the appeal.
• The integrity of Canadian Immigration legislation is central to the public interest.
• The tribunal member reviews Summaries of Agreements to ensure that the public interest is served. This does not involve a file review or invite the member to substitute his or her view.
• The member is to:
  • ensure that the issues and facts have been adequately addressed and are set out in the document;
  • ensure that there has been no error in law; and
  • ensure there is nothing egregious on the face of the document.
• The DRO is to draft the Summary of Agreement form in accordance with the agreed terms of settlement. The DRO should receive input from both of the parties and counsel and check the document for completeness and correctness.
• If the ADR session results in a withdrawal, the withdrawal form must be completed. No substantiating information needs to be provided.
• If Minister's counsel recommends that the appeal be allowed, sufficient information to justify that recommendation must be provided in the Summary of Agreement.
• If Minister's counsel agrees to recommend the appeal be allowed on certain conditions within a period of time, Minister's counsel may provide the requisite information.
• If a Summary of Agreement is contemplated, the DRO should advise parties at the ADR session that the Summary of Agreement will remain on the IAD file and is accessible as are other IAD documents.
• If requested, the DRO should provide a copy of the Summary to the Appellant.
• This practice is to be periodically reviewed by the IAD to ensure that it is in accordance with governing legislation and policy.

PROTOCOL - OPTING-IN

• For case types outside the mandatory program, both parties are required to consent to a case's inclusion.
• If fewer than 100% of cases within designated case types are selected, opting in is allowed on the application of either party.

PROTOCOL - OPTING-OUT

• It is recognized that some cases may be unsuitable for ADR.
• Parties may mutually opt out of ADR no less than ten days prior to the scheduled ADR Conference date upon approval by a designated IAD official.
• The party wishing to opt out must contact the other party.
• If the other party consents to opting-out, the instigating party must file a notice of mutual agreement with the IAD for consideration.
• The IAD must respond within five days.
• The IAD may relieve against time limits in appropriate circumstances.
• If the other party does not consent to opting-out or if the IAD denies the request to opt out, the case proceeds to an ADR Conference.
• The rate of opting out will be monitored carefully by the IAD and if it exceeds more than 20% in any three-month period or it appears to be abused, its continuation will be reviewed by the IAD.
• The following criteria will be considered by the IAD in the exercise of its discretion as to whether or not to allow the opting-out:
  • Whether there is a serious legal, constitutional, or Charter issue;
  • The novelty of the issue(s);
  • Whether the case is likely to establish an important precedent;
  • How significant the public interest issues are;
  • Any impediment(s) to the attendance of the Appellant at an ADR Conference; and
  • Whether the parties have made genuine efforts to resolve the case through prior discussion.
• Opting-out will be limited to those cases in which ADR is clearly not the most appropriate dispute resolution process.

Related Links

• Appellants' Guide to ADR Conference Re: Sponsorship Appeals (October 2003, revised October 2006)
• Appellants' Guide to Alternative Dispute Resolution (ADR) Conference Re: Sponsorship Appeals – Addendum – Marriage, Common-law or Conjugal Partner Cases (October 2006)
• Appellants' Guide to Alternative Dispute Resolution (ADR) Conference Re: Sponsorship Appeals – Addendum – Sponsor’s Minimum Necessary Income (MNI) (October 2006)
• Assessing Efficiency, Effectiveness and Quality: An Evaluation fo the Alternative Dispute Resolution (ADR) Program (October 2003)
• Alternative Dispute Resolution (ADR) at the Immigration Appeal Division (October 2003)