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Faster Resolutions, Bigger Savings: the Mediation Advantage

By Carine Bouzaglou

In order to encourage the parties to opt for alternative dispute resolution, the legislator provides them with an advantage. If the parties participate in mediation before instituting legal proceedings, while respecting the conditions described below, their case will be tried by preference. The legislator has established a fast track for litigants who have genuinely attempted to resolve their dispute amicably before resorting to the courts.

Article 1 paragraph 3 of the Code of Civil Procedure (C.p.c.) provides:

Parties must consider private prevention and resolution processes before referring their dispute to the courts.

Unfortunately, this obligation has not had a significant impact on the number of proceedings instituted in court. In an effort to further motivate parties to truly consider settlement before suing, the following paragraph, which came into force on June 30,2023, was added to article 7 C.p.c.:

If the parties exercise their right to act before the courts, the application then instituted in any matter other than a family matter is tried by preference provided it is accompanied by a certificate issued by a certified mediator or a body offering mediation in civil matters, and confirming that the parties resorted to a private dispute prevention and resolution process, or by evidence that the parties agreed to a pre-court protocol.

The legislator is providing a valuable incentive, if parties participate in mediation before filing a lawsuit, they will benefit from a meaningful advantage – their matter will be tried by preference. Currently, once a joint declaration stating that a case is ready for trial is filed, most trials will be scheduled months if not years down the line. For cases where a certificate issued by a certified mediator has been filed with the judicial application originating the proceedings, this delay should be significantly shorter.

In order to benefit from this preferential treatment, the following conditions must be met:

  1. The parties must actively participate in mediation;

  2. The mediation must take place prior to instituting proceedings;

  3. The mediation must take place before a certified mediator or a body offering mediation in a civil matter;

  4. If the negotiations fail, the mediator must provide a certificate confirming that the parties resorted to a private dispute prevention and resolution process; and

  5. This certificate must be filed with the originating application when instituting proceedings.

This article applies to civil matters instituted before the Court of Quebec and the Superior Court. It does not apply to family law cases or to civil matters instituted before the Small Claims Court.

One issue that may come up with the requirement to participate in mediation prior to instituting proceedings is prescription. If prescription delays are close to expiring, parties may not be willing to take the risk of losing their rights during the mediation process. Article 7, paragraph 2 C.p.c. provides that the parties may agree to waive prescription acquired and the benefit of time elapsed for prescription purposes or agree to suspend prescription for the duration of the process. Any agreement to suspend prescription cannot exceed six months and must be made in a signed document. It follows that, if the parties are willing to go to mediation first, prescription should not be an impediment.

The benefits of early mediation extend beyond just a faster trial date. According to the Rapport annuel de gestion 2020-2021du ministère de la Justice chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/, approximately 60% of cases submitted to mediation settle in mediation. For the other 40%, mediation often leads to partial agreements, where parties find common ground on specific issues within their dispute. This can significantly simplify the legal debate that eventually unfolds in court, saving time, resources, and ultimately, money.

Applications where the dispute or amount claimed is less than $100,000, exclusive of interest, are now conducted according to the special simplified rules for the recovery of certain claims provided for in articles 535.1 and following C.p.c. Article 535.12 C.p.c. provides an obligation for the parties to participate in a settlement conference. However, if the certificate by a certified mediator or body offering mediation in civil matters described above was filed when instituting the claim, the parties can agree to replace this settlement conference by a pre-trial conference where they ready the case for trial. Reading this article together with article 7 paragraph 3 C.p.c., judges may also schedule a preferential trial date during this pre-trial conference.

While it's true that parties must bear the cost of mediation, this expenditure is more of an investment than an expense. Time, as the saying goes, is indeed money. By opting for mediation before pursuing litigation, litigants are not only taking a step towards resolution but also ensuring that their legal journey is as efficient and cost-effective as possible.

The recent legal amendment emphasizing the preference for cases that have engaged in mediation before filing a lawsuit sends a clear message: mediation is a powerful tool, and its benefits extend far beyond just settling disputes. It accelerates the legal process, streamlines debates, and ultimately saves parties both time and money. Lawyers have the responsibility to advise their clients to consider mediation as the first step on their journey toward justice, ensuring they receive the swiftest and most efficient resolution possible.

For a published version of this post see Repères, Décembre, 2023, EYB2023REP3702.

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