Commercial Mediation and Quebec’s New Code of Civil Procedure

On April 16, 2016, Posted by , In International Analysis,

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On January 1, 2016, Québec’s new Code of Civil Procedure (NCCP) entered into force.  This important reform, the first of its kind since 2002, is intended to make justice more accessible, particularly by favouring private dispute prevention and resolution (DPR) processes such as negotiation, mediation and arbitration.

The central role that private DPR processes are expected to play in the new legal culture that the National Assembly seeks to bring about in Québec through the NCCP appears at the outset in its Preliminary Provision, which will serve as a touchstone to interpret the whole Code and, for this reason, is at the very beginning, even before Section 1.  This provision stipulates, inter alia, that it is in the public interest that the prevention and resolution of disputes be carried out “through […] processes that encourage the persons involved to play an active role.”  The Code thus demonstrates the law-maker’s will to facilitate participative justice, which responds to the desire of today’s citizen, who is more informed and educated and has a different relationship with authority, to participate in the prevention and resolution of his or her own disputes.

Mediation has become inescapable

The preeminent position of private justice in the new Code is again apparent in the fact that Title I of its Book I, which defines the “General Framework Of Civil Procedure”, is about “Principles of Procedure Applicable To Private [DPR] Processes”.  Section 1 of the NCCC introduces these processes and establishes their consensual nature.

Section 1 also imposes a new obligation on parties, which is to “consider private prevention and resolution processes before referring their dispute to the courts.”  Section 148 completes this obligation by requiring the parties to litigation to indicate in the case protocol « the consideration given to private [DPR] processes ».  The court may punish the violation of this obligation in a variety of ways, including by ordering one party to pay the legal costs incurred by another.

Mediation: a worldwide trend

This emphasis on private DPR processes in Québec’s NCCP is part of a broader trend, which can be observed around the world, resulting from the increasing use of these processes, in particular mediation, to resolve disputes governed by business and trade law, both national and international, much more quickly and at much less cost than using the courts.  Although it isn’t certain, the likely outcome of mediation is an agreement between the parties, as many studies show that mediation generally has a success rate of 75% or more.  In other words, parties in mediation have at least three out of four chances of arriving at a mutually acceptable settlement.

CMKZ recommends that its clients include in all their contracts a mediation clause along the following lines:

The parties agree that all disputes arising out of or in connection with this agreement, or in respect of any legal relationship associated with or derived from this agreement, shall be submitted to mediation.”

 CMKZ’s Accredited Mediators

CMKZ is ready to help its clients move towards participatory justice, as suggested by the NCCP.  Six of the firm’s members are accredited mediators, who can both advise clients on the drafting of mediation clauses tailored to their needs and accompany them in the mediation process, whether as mediators or as legal advisors in mediation.

For further information, please contact Paul Fauteux or Anne-Émilie BeaulieuMireille BrosseauBernard ColasXavier Mageau and Hynek Zikovsky who are also mediators accredited by the Quebec Bar.

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