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Judicial delays: Mediation offers solutions

By Simon Blais (May 20, 2020)

It is well known that there are long delays between the introduction of procedure before judicial courts and the time of trial. Generally, the parties can wait 2 to 4 years before finally being able to proceed before a judge of the Superior Court of Quebec for the hearing of their case on the merits in civil matters[1]. Various factors may explain these delays, including the lack of resources in the justice system[2]. 


At the time of writing, the pandemic situation resulting from COVID-19 continues to have a profound impact on economic activities, including the conduct of judicial activities. In Quebec alone, nearly 600 trials have been postponed since March 2020 and this, only for the jurisdiction of the Superior Court[3]. In April 2020, the Chief Justice of the Superior Court requested the appointment of 15 new judges to reduce the delays that are increasing during the pandemic[4].


In the face of this situation, it is important to acknowledge that mediation offers solutions to this issue. In our series of articles on mediation, we will now explore many of the benefits of this method of dispute resolution, especially in a context where judicial delays are increasing.


1) Rapidity of mediation :


In general, as soon as the parties agree on the choice of mediator and find common availabilities, the mediation process can begin. Thus, we can talk about a few weeks (and even a few days if the situation requires it) before starting mediation.


If an agreement is reached by the parties through mediation, their dispute could be resolved in a matter of weeks or months, unlike years in judicial courts.


It is important to remember that mediation can even begin to prevent a dispute[5]. Indeed, before the dispute becomes a litigation before judicial courts, the parties may decide to use mediation to try to resolve it. 


2) Flexibility of mediation : 


The flexibility of the mediation process is one of the main reasons for its speed. Let us explore different components of this flexibility.


Firstly, mediation schedule can be arranged based on the common availabilities of the parties instead of the availabilities of judicial courts. Indeed, nothing prevents the parties and the mediator from adapting the schedule on days and time slots that meet their needs. For instance, if the parties can only proceed in the afternoons and evenings or on weekends, it is possible to adapt the mediation sessions in accordance with these constraints.


Secondly, the mediation process can take place virtually[6]. Thus, everyone's travel time can be reduced considerably if not completely. This is a considerable advantage of mediation for parties residing in different cities or countries. 

 

Thirdly, mediation can take place with the parties alone and without the need for legal counsels. This option is not applicable to all situations, but it can be considered. In more complex cases, the representation and support of the parties by lawyers may be beneficial and/or necessary. It is important to remember that the mediator is a neutral and impartial third party and cannot advise the parties individually[7]. 


Another advantage of mediation is the ability to be more flexible in the "procedure." For example, the disclosure of documents relating to the dispute can be done quickly (e.g. through a secure IT platform) without having to go through the formal communication and notification procedures before judicial courts[8].


Given the current situation resulting from COVID-19[9], some parties may be reluctant to pursue the resolution of their dispute for the time being. Indeed, considering that several disputes will be resolved with a financial component, some parties may express reserves about putting money forward to settle a case when there is a great deal of economic uncertainty. 


As part of the mediation process, it is possible for the parties to jointly decide to suspend financial components until certain conditions are met. This way, they will be able to make great progress in resolving their conflict while retaining the opportunity to settle monetary aspects when agreed conditions are met.


Finally, if the parties fail to reach an agreement through mediation, they will be able to suspend the process and file a judicial application to protect their rights, including the statute of prescription[10]. Several combinations are possible, such as the introduction of a judicial application, the suspension of this application and the attempt to mediate in parallel. All these options demonstrate the flexibility of the process. In all scenarios, it should be remembered that the mediation process is confidential and that the privilege of non-compellability applies to the parties and the certified mediator[11]. 


3) Cost reductions for all parties:


Being able to mediate quickly provides several benefits, including cost reductions for the parties. Several types of costs can be reduced through mediation, such as the costs of legal proceedings.

In general, the costs of mediation are shared equally between the parties. For instance, in a mediation process involving four parties, the mediator's fees and related fees (e.g., conference rooms rental) will be a quarter for each party, unless there is a different agreement. It is therefore a process where each party saves costs.


In many cases, a dispute that is not resolved in a timely manner can create other conflicts or onerous situations. For instance, a company that must wait several years to resolve a dispute with one of its suppliers could find itself in a difficult financial situation (even bankruptcy) or lose market shares. In our example, even the supplier could find itself in a similar situation because of the ongoing litigation. As a result, reaching an agreement quickly through mediation could avoid several direct or indirect costs for all parties.


As mentioned earlier, the use of technological means such as virtual mediation is another way to reduce costs. Of course, the opportunity to proceed without a lawyer could also reduce total costs in appropriate situations.


In an international dispute, cost reductions could be even more significant. For instance, the parties could avoid jurisdictional issues before courts. Mediation provides the opportunity to resolve the entire international dispute. Moreover, the resulting transaction will be enforceable in most countries that are signatories of international conventions, including the Singapore Convention[12]. 


In conclusion, in the face of ever-increasing judicial delays, mediation offers interesting solutions. Mediation is a fast, flexible and generally less expensive process than the traditional judicial path.



Simon Blais is a certified mediator in civil, commercial and labour issues. He assists parties in the process of alternative dispute resolution. He also provides virtual mediation services while ensuring the security and confidentiality of the process.


 

 REFERENCES:  

[1] Cour supérieure du Québec : Rapport d’activités 2010-2014, Une cour au service des citoyens, accessible at http://www.tribunaux.qc.ca/c-superieure/RapportActivites_juillet_2015.pdf, as of May 13, 2020, p. 31. 

[2] Id.

[3] TISON, Florence : « Déjà 600 procès reportés en Cour supérieure », Droit Inc., published on May 6, 2020, accessible at http://www.droit-inc.com/article26701-Deja-600-proces-reportes-en-Cour-superieure, as of May 13 2020. 

[4] TISON, Florence : « Le juge en chef demande 15 nouveaux juges », Droit Inc., published on April 21, 2020, accessible at http://www.droit-inc.com/article26630-Le-juge-en-chef-demande-15-nouveaux-juges, as of May 13, 2020.

[5] See BLAIS, Simon : “What is mediation?’’, Blais Legal Services Inc., published on March 10, 2020, accessible at https://blaislegal.ca/art-eng-mediation, as of May 13, 2020. 

[6] See BLAIS, Simon : ‘’Virtual mediation’’, Blais Legal Services Inc., published on March 20, 2020, accessible at https://blaislegal.ca/art-eng-virtual-med, as of May 13, 2020.

[7] See BLAIS, Simon : “What is mediation?’’, Blais Legal Services Inc., published on March 10, 2020, accessible at https://blaislegal.ca/art-eng-mediation, as of May 13, 2020.

[8] See notably Quebec’s Code of Civil Procedure, CQLR c C-25.01, articles 139,148 and 246.

[9] WHO Director-General’s opening remarks at the media briefing on COVID-19 -11 May 2020, World Health Organization, accessible at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-may-2020, as of May 13, 2020.

[10] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 7.

[11] See BLAIS, Simon : “What is mediation?’’, Blais Legal Services Inc., published on March 10, 2020, accessible at https://blaislegal.ca/art-eng-mediation, as of May 13, 2020.

[12] United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) (the "Singapore Convention on Mediation"), adopted on December 20, 2018 and open for signature on August 7, 2019, accessible at https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements, as of May 13, 2020. 

EXTRACTS

  “…in the face of ever-increasing judicial delays, mediation offers interesting solutions. Mediation is a fast, flexible and generally less expensive process than the traditional judicial path.”


“If an agreement is reached by the parties through mediation, their dispute could be resolved in a matter of weeks or months, unlike years in judicial courts.’’


“…mediation schedule can be arranged based on the common availabilities of the parties instead of the availabilities of judicial courts.”


“In general, the costs of mediation are shared equally between the parties.”

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