Mediation in civil and commercial affairs
by
Mtre Jocelyn Rancourt,
Q.C..
Mediation: a means of conflict resolution
Mediation in civil and commercial affairs is an alternative method of conflict resolution. Parties involved in a dispute may call upon the intervention of a third party, the mediator. Being unbiased, the mediator is called upon to help the parties define the dispute and explore possible solutions together.
In this process, the mediator brings the parties to express their expectations, their needs and objectives.
The mediator is unbiased and helps bring the parties together to facilitate the discussion of the items under dispute and bring the parties to find a solution agreeable to both by themselves.
This process involves two or more parties to a legal (or non-legal) dispute who wish to arrive at a settlement before proceeding before the court or before bringing an action before the court. The process is voluntary and all parties involved must accept to mediate the dispute.
One or more party may stop this process at any point. The decision to mediate does not bind the parties and they may choose at any time to put an end to the process.
1. Agreement to mediate:
The parties involved in the dispute must first agree to mediation.
2. Selection of a mediator:
The mediator will usually conclude a mediation agreement with the
parties. This agreement explains the role of the mediator and spells out the
procedure. Most good law firms can supply you with a sample of the agreement
recommended by the Quebec Bar.
3. Meeting and confidentiality:
According to a set schedule, the parties will meet in the presence of
the mediator. One or more mediation sessions may be required to cover all
relevant facts and complete all required discussions. Any discussion,
declaration, or document submitted during these sessions remains
confidential and can not be used in a dispute before the courts. The parties
can therefore freely express themselves without having their arguments used
before a court.
4. Decision-making authority:
The mediator has no decision-making authority; he must find ways to
bring the parties to find a settlement that is agreeable to all by
themselves. Should the mediation not lead to a settlement, the parties
retain the right to bring their dispute to the courts.
5. Compensation of the mediator:
The mediator is chosen in common accord by the parties and is paid by
them.
6. Presence of lawyers:
The parties may choose to have their lawyer present. Usually, when one
party requests the presence of his or her lawyer, all parties follow suit.
The mediation process is available to any person that requests it. The parties that choose mediation may already be before the courts or they may call upon this process whether their dispute is or not the subject of legal proceedings. Given that mediation is a voluntary procedure, it can be used to try to solve problems or difficulties of any type, of private, municipal, provincial, federal or even international jurisdiction. One condition remains: all parties to the dispute must agree to mediation.
This procedure can be started at any time, before or during legal proceedings. When legal proceedings have already started, mediation does not stop their progress.
The length of the procedure is left up to the parties and the mediator. It is in fact linked to the availability of the parties.
Compared to legal proceedings before a court, mediation represents minimal fees. Should the parties not choose to have their lawyer present, the only fees imposed are those of the mediator and the rental of the locale. Mediators are usually remunerated on an hourly basis.
A mediator is usually an experienced lawyer, familiar with law and procedure. He is bound to a code of ethics and is used to conflict situations. Mediators are trained in negotiation and mediation. The mediator’s experience helps in defining the issues and exploring potential solutions.
Mediation is a simple procedure where each party proceeds at his or her own pace and can put an end to the procedure at any time. There is no risk associated with the procedure, so participants can only gain in trying.
Most of the cases referred to mediation up till now have seen positive results. Given the potential results of mediation, it can prove a worthwhile investment.
