The heightened role of mediation in the new Code of Civil Procedure
Next fall, the rules of civil procedure in Quebec will undergo major changes with the coming into force of the new Code of Civil Procedure1 (the “New Code”). Among other things, this major overhaul will promote private dispute prevention and resolution methods such as mediation, arbitration and settlement conferences, by incentivizing parties to use them before going to court.
While there are several private dispute prevention and resolution methods available, this article will focus on the prominent place given to mediation in the New Code and the provisions applicable to it.
The current Code of Civil Procedure
Mediation, in respect of which the provisions of the current Code of Civil Procedure (the “Current Code”) are limited to family matters2 and small claims3, consists of “[TRANSLATION] a voluntary and flexible process taking place confidentially and in private” whereby “a neutral and impartial person, the mediator, helps the parties involved in a dispute to communicate, to attempt to resolve their differences and to themselves find a favourable resolution to their dispute”4. The Current Code generally provides that the Court may recommend mediation to the parties5.
The new Code of Civil Procedure
With the New Code, the Legislator evidently sought to prioritize the prevention of disputes through a participatory approach, as the preliminary provision indicates: “This Code is designed to provide, in the public interest, means to prevent and resolve disputes and avoid litigation through appropriate, efficient and fair-minded processes that encourage the persons involved to play an active role.”
This legislative intent is given concrete effect in two ways: first by giving the courts, both at first instance and on appeal, the mission of facilitating conciliation whenever the law so requires, the parties request or consent to it, or circumstances permit it, or if a settlement conference is held6, and secondly by setting out the procedural principles applicable to private dispute prevention and resolution methods.
Finally, the New Code consolidates, in a single section (“book”), all of the rules applicable to such methods7.
Generally speaking, the New Code requires the parties to “consider” private dispute prevention and resolution methods before referring their dispute to the courts8.
In addition, pursuant to article 2 of the New Code, the parties are obliged to act in good faith, to be transparent with each other and to cooperate actively in seeking a solution to their dispute. Finally, the confidentiality of their written and oral exchanges is protected9.
The New Code also reminds the parties that participation in a private dispute prevention and resolution process does not constitute a waiver of their right to go before the courts, although they may undertake not to exercise that right during the resolution process unless it proves necessary to protect their rights10.
One of the significant changes brought about by the New Code is the new status afforded to mediation, through the codification of several provisions in that regard. As mentioned, the New Code heightens the importance of mediation by requiring the parties to “consider” it before referring their dispute to the courts.
The New Code also sets out the obligations of the mediator, which include helping the parties clarify their views, defining the issues in dispute, identifying their needs and interests and exploring solutions that may result in a mutually satisfactory agreement11.
The New Code also provides that the mediator cannot be compelled to disclose anything heard or learned during the mediation process, except in certain clearly defined circumstances. This rule of non-compellability is tempered by the status of the mediator, as the New Code specifies that in order to be able to claim the privilege of non-compellability; the mediator must be certified by a body recognized by the Minister of Justice. In addition, the mediator must be subject to rules of professional conduct and be covered by civil liability insurance12.
Finally, the New Code contains certain provisions that are specific to family mediation. While it does not oblige the parties to participate in an information session on mediation, as the Current Code does, it remains that the very first article of the New Code requires them to consider private dispute prevention and resolution methods13.
Implementation of the New Code
It will be very interesting to see how the obligation to “consider” private dispute prevention and resolution methods will be applied, as it is difficult to predict the degree of intensity the courts will assign to that obligation.
There is no question however that it will be prudent for the parties to document well all steps taken in this regard and all exchanges with the other party with a view to fulfill that obligation, so as to be able to satisfy the court that they have complied with it.
In order to be ready for the adaptations they will be required to make as of next fall, lawyers and support staff should hasten to familiarize themselves with private dispute prevention and resolution methods, by integrating them to the extent possible into their day-to-day practice.