The Benefits of Civil Mediation

Civil Mediation

Mediation: a full-fledged process of justice

Since the new Code of Civil Procedure came into force in 2016, mediation is no longer a marginal option. The legislature devotes the very first articles of the Code to it, alongside negotiation and arbitration, under the heading of « private dispute prevention and resolution processes. » It goes even further: before turning to the courts, the parties are required to consider it. Article 1 of the Code ends as follows:

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

The Supreme Court of Canada underscored the significance of this shift in Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54:

[52] The coming into force of the new Code of Civil Procedure in 2016 elevated dispute prevention and resolution processes — including family mediation — to the status of « processes of justice of equal importance » to the traditional judicial process. […] This major shift in Québec’s judicial culture was explicitly undertaken by the legislature as an « access to justice » measure, aimed at making the system « much more accessible, faster, less cumbersome and less costly. » [Our translation]

A voluntary process that closes no doors

The first fear of litigants is that they will « lose their rights » by agreeing to talk. The Code answers this concern clearly: taking part in mediation does not entail a waiver of the right to take legal action (art. 7 C.C.P.), and the parties may, at any stage of the proceeding, choose to settle their dispute through a private process without halting the case (art. 19 C.C.P.). Mediation can therefore be attempted before an application is filed, or in the middle of a trial. It does not push back the trial date in any way: if the mediation fails, the parties will be heard as scheduled.

The law even rewards those who make the effort to seek a settlement. The parties may agree in writing to suspend prescription during the mediation, for a maximum of six months, so that they can look for a solution without fearing that their claim will become time-barred. And if an application, other than in family matters, is ultimately filed after an attempt at settlement, it is heard by priority (art. 7 C.C.P.).

Trying mediation costs you nothing in terms of rights: if it fails, the court remains available, and your application will even be heard by priority

Confidentiality: speaking frankly, without risk

For a settlement to be possible, each side must be able to lay out its real interests, acknowledge its weaknesses and make concessions without fearing that those words will be used against it before a judge. That is why confidentiality is at the heart of the mediation regime. Article 4 of the Code of Civil Procedure makes it an obligation:

4. Parties who choose to prevent a dispute or resolve one through a private process, and the third person assisting them, undertake to preserve the confidentiality of anything said, written or done during the process, subject to any agreement between them on the matter or to any special provisions of the law.

This protection is reinforced by article 606 C.C.P., under which an accredited mediator and the participants cannot be compelled to disclose what was said in mediation, and by the « settlement privilege » recognized by the Supreme Court in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, and Bouvier. The privilege applies without the parties even having to invoke it, subject to one logical exception: the existence and scope of the agreement reached can always be proven.

Lower costs and shorter delays

A contested civil case can take years before it is heard on the merits, and legal fees, expert reports and court costs pile up at every stage; legal scholars speak plainly of the « exorbitant cost » and « institutional delays » of traditional justice. A mediation, by contrast, takes place over a few sessions, on dates chosen by the parties, and its costs are shared equally unless otherwise agreed (art. 615 C.C.P.).

In Kosko v. Bijimine, 2006 QCCA 671, the Québec Court of Appeal identifies « low cost, » the voluntary nature of the process, confidentiality and « speed » as the foundations of mediation. The legislature believes in it enough to have made it mandatory, in certain districts, for claims of $5,000 or less in the Small Claims Division (art. 556 C.C.P.).

Preserving the relationship between the parties

A trial pits adversaries against each other; a mediation brings together people who have a problem to solve. The difference is decisive when the parties must keep dealing with one another: business partners, landlord and tenant, neighbours, supplier and customer, heirs to the same estate. The mediator helps the parties clarify the issues and their real interests, in order to find common ground that often allows the relationship to continue. The Supreme Court acknowledged this in Bouvier, in the family context:

[51] Commentators point out that mediation is particularly well suited to family conflicts, « because it makes it possible to restore better communication between the spouses and to preserve their relationship in the future where there are children. » [Our translation]

What is true of spouses is just as true of business partners: a negotiated agreement is better understood and better accepted than a judgment imposed from above.

An agreement with real legal value

The outcome of a successful mediation is not a mere handshake. When the parties end their dispute through mutual concessions, the signed agreement is a transaction within the meaning of article 2631 of the Civil Code of Québec, a contract that has, between the parties, the authority of a final judgment (art. 2633 C.C.Q.). To enforce it like a judgment, all that is needed is to have it homologated by the court, a simple and quick procedure. In the Small Claims Division, the agreement approved by the special clerk or the court « is equivalent to a judgment » (art. 556 C.C.P.).

One caveat: an unsigned « summary of agreements, » or an agreement touching on matters of public order such as child custody or support, does not carry that force without judicial review, as the Supreme Court made clear in Bouvier. Hence the importance of having the final agreement drafted by a legal professional, in clear terms and with a homologation clause.

A well-drafted mediation agreement, once homologated, is enforceable like a judgment, without the years of waiting and the costs of a trial

Tell us about your dispute

Commercial disputes, conflicts between business partners, landlord-tenant disagreements, estate or contract disputes: most civil cases can be resolved through mediation, before or during proceedings. Mes Laurent Laforce-Tarabay and Alexandre Lacroix, lawyers and mediators, structure the discussions, facilitate dialogue and draft the formal agreement once a consensus is reached. Call us to find out whether mediation is right for your case.

This blog post is provided for general informational purposes only and does not constitute legal advice. Every situation is unique — consult a legal professional for advice tailored to your case.