What is mediation?

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In this series of articles on civil and commercial mediation, we will explore the different characteristics and applications of this dispute resolution technique. As we will see, mediation has many advantages. Indeed, mediation allows a more complete search for solutions to conflicts and disputes that may arise especially in a contractual, business or employment relationship. It has the advantage of being generally a faster and less costly means than the introduction of a judicial case. In addition, mediation is a confidential process. Before going further in this exploration, we shall begin by looking briefly at the recent developments in the mediation practice.  Afterwards, we will go into more detail as to what defines mediation.

Although mediation has been used for a long time, provincial and national legislators are still in the process of formalizing the practice. As we will see in another article, its international framework is being formalized, notably with the process of signing the Singapore Convention[1] by the participating countries. In Quebec (Canada), it is mainly the entry into force of the "new" Code of Civil Procedure[2] in January 2016 and that of the Minister of Justice Directive[3] in August 2018 (and its update in October 2019) that frame the mediation process.

What is mediation? Mediation is a private form of alternative dispute resolution ("ADR") chosen by parties to prevent a potential dispute or resolve an existing one[4]. There is a range of private mode of ADR including negotiation and arbitration.

To refer to mediation, we usually need the presence of five criteria[5], which are :1) the presence of a neutral and impartial third party (the mediator), 2) confidentiality, 3) free and voluntary nature, 4) the obligation of the parties to negotiate in good faith and 5) the self-determination of the parties. 

Therefore, one may explore the significance of these 5 criteria and their importance.

1) The presence of a neutral and impartial third party:

The mediator is the neutral and impartial third party necessary for one to be in a mediation process. Thus, the mediator does not take position and has no decision-making power. Therefore, he does not render judgment. He is the expert on the settlement process. It is the parties, by mutual agreement, who choose the mediator[6]. With different techniques adapted to each situation, the mediator creates a climate of trust so that the parties can express themselves constructively. Through the mediation process, the mediator will lead the parties to potential solutions to their dispute.

In Quebec, there is a distinction between the accredited and the non-accredited mediator. Indeed, the accredited mediator is the one who responds to the best practices in Quebec[7]. The accredited mediator receives accreditation from one of the four organizations recognized by the Ministry of Justice: the Quebec Bar, the Chamber of Notaries of Quebec, the Institute of Mediation and Arbitration of Quebec (IMAQ) and the University of Sherbrooke[8].

In addition, the accredited mediator may not be compelled to disclose the information received during mediation in the context of an arbitration, administrative or judicial procedure[9]. This last element brings us to the next criterion of confidentiality.

2) Confidentiality:

As with the accredited mediator, participants in mediation enjoy the privilege of non-compellability[10]. Therefore, participants cannot be compelled to disclose anything they hear or learn in the course of the mediation process.

In addition, participants are committed to maintaining the confidentiality of what is said, written or done during the mediation process[11]. Therefore, no participant will be able to use these elements in any context other than during the mediation process, unless there is a specific agreement on the matter. The participants in the mediation can therefore exchange with full confidence.

3) Free and voluntary nature: 

The parties decide to participate or not participate in the mediation process in order to try to resolve their dispute[12]. It also means that even during the mediation process, either party may decide to terminate mediation for its own reasons[13].

In some jurisdictions outside Quebec, the judicial process sometimes requires a mandatory passage through mediation as it is the case in Ontario (Canada)[14]. Thus, opinions differ as to the effectiveness of such an obligation. Thus, one must verify the rules applicable to the jurisdiction of the dispute to know if mediation is mandatory.

4) The obligation of the parties to negotiate in good faith:

In mediation, the parties must negotiate in good faith[15]. This means that they must be transparent to each other about, among other things, the information they hold[16]. They must also cooperate actively in the search for solutions[17].

Thus, mediation is not used as an excuse to carry out a "fishing expedition". That is, to use mediation to try to extract confessions or documents that could be used in the context of the current conflict or a future conflict.

5) The self-determination of the parties.

Unlike arbitration or action before judicial courts, the mediator does not render judgment at the end of the mediation process. It is the parties who make the decision to accept or not an agreement ending the conflict. 

During the mediation process, it is the parties who will propose solutions adapted to their reality. They may ask the mediator to work with them to develop proposals to prevent or settle their conflicts[18]. Ultimately, it is the parties who decide whether the solutions 

developed during mediation are mutually satisfactory and whether they resolve the conflict.

If the parties reach an agreement at the end of the mediation process, it may be confirmed by a transaction[19]. Briefly, a transaction is a contract that put an end to the dispute between the parties and has, for them, the authority of a judgment[20]. This transaction may be homologated by a court in order to have the same force and effect as a judgment by the court[21].

In conclusion, we provided an overview of the five criteria that define mediation. It is interesting to note that the mediation process provides flexibility for the parties in finding solutions to their dispute. Instead of obtaining a judgment on a specific point in law before the courts, this approach broadens the spectrum of solutions and possibly prevents future conflicts while preserving the relationship between the parties. In addition, these results may be achieved more quickly and at a lower cost than before judicial courts.

In our next articles, we will continue this exploration of the benefits of mediation in specific cases. For instance, we will look at the benefits of mediation for the international business sector.

Simon Blais is a certified mediator in civil, commercial and labour issues. He assists parties in the process of alternative dispute resolution.

REFERENCE:    

[1] 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 March 5, 2020. 

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

[3] Reconnaissance des organismes accréditeurs en médiation civile : Directive encadrant le pouvoir discrétionnaire du ministre de la Justice, entered into force on August 22, 2018 and with last amendment on October 4, 2019, accessible at https://cdn-contenu.quebec.ca/cdn-contenu/adm/min/justice/publications-adm/directives/DIR_organ_PRD_MJQ.pdf, as of March 5, 2020. 

[4] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 1.

[5] Quebec’s Code of Civil Procedure, CQLR c C-25.01, articles 1 to 7 and 605 to 615; BÉRIAULT, Thierry, « L’approche intégrative à la pratique de la médiation » dans le médiateur professionnel en action et en mots, directed by Eric Battistoni, Michèle Lenoble-Pinson et Federic Oudin, L’Harmattan, Paris, 2014, p. 13.

[6] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 6.

[7] See the Directory of accredited civil mediators at https://www.justice.gouv.qc.ca/en/your-disputes/dispute-prevention-and-resolution-dpr-processes/mediation/directory-of-accredited-civil-mediators, as of March 5, 2020.

[8] Id.

[9] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 606.

[10] Id.

[11] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 606.

[12] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 2.

[13] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 614.

[14] Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 24.1.

[15] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 2.

[16] Id.

[17] Id.

[18] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 605.

[19] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 613.

[20] Civil Code of Québec, CQLR c CCQ-1991, articles 2631 to 2637.

[21] Quebec’s Code of Civil Procedure, CQLR c C-25.01, article 528.