Mediation and Arbitration

Overview

For parties wishing to resolve a dispute otherwise than through the courts, alternative processes of dispute prevention and resolution (PRD) – mediation and arbitration – provide attractive options.

Lavery offers private mediation and arbitration services for resolving disputes both in Quebec and elsewhere. Our lawyers have extensive experience with these alternative modes of dispute prevention and resolution in many different areas of the law, including civil and commercial litigation, construction law, family law, and labour law.

Many members of our team of mediators and arbitrators are accredited by the Barreau du Québec, the Institut de médiation et d’arbitrage du Québec (IMAQ), and the Arbitration and Mediation Institute of Canada Inc. (IAMC).

Services

In addition to their considerable experience in advising clients and guiding them through all aspects of alternative dispute resolution, from drafting mediation and arbitration clauses to representing parties in mediation and arbitration proceedings, a number of our professionals are also able to serve as mediators or arbitrators in the following areas:

  • Civil and Commercial Litigation
  • Insurance
  • Product Liability
  • Construction and Infrastructure
  • Family Law
  • Protection of Persons
  • Estates
  • Labour and Employment
  • Shareholder Disputes
  • Corporate Governance and Management
  • Directors and Officers Liability
  • Intellectual Property
  • Class Actions
  • Financial Services
  • Professional Liability (including healthcare professionals, architects and engineers, and lawyers)

Our services can include the complete organizational aspect of mediation or arbitration process, its preparation, any preliminary sessions, the mediation and arbitration sessions, as well as the necessary follow-up when an agreement is reached between the parties.

If the parties wish to, they may take advantage of holding the mediation or arbitration sessions at our offices in Montréal, Québec, Sherbrooke or Trois-Rivières, all of which are fully equipped and suited for this purpose.

Our Professionals

Certified Mediators

Mediators specializing in Family, Personal and Estate Law (family mediation)

Arbitrators

  1. Artificial Intelligence and the 2017 Canadian Budget: is your business ready?

    The March 22, 2017 Budget of the Government of Canada, through its “Innovation and Skills Plan” (http://www.budget.gc.ca/2017/docs/plan/budget-2017-en.pdf) mentions that Canadian academic and research leadership in artificial intelligence will be translated into a more innovative economy and increased economic growth. The 2017 Budget proposes to provide renewed and enhanced funding of $35 million over five years, beginning in 2017–2018 to the Canadian Institute for Advanced Research (CIFAR) which connects Canadian researchers with collaborative research networks led by eminent Canadian and international researchers on topics including artificial intelligence and deep learning. These measures are in addition to a number of interesting tax measures that support the artificial intelligence sector at both the federal and provincial levels. In Canada and in Québec, the Scientific Research and Experimental Development (SR&ED) Program provides a twofold benefit: SR&ED expenses are deductible from income for tax purposes and a SR&ED investment tax credit (ITC) for SR&ED is available to reduce income tax. In some cases, the remaining ITC can be refunded. In Québec, a refundable tax credit is also available for the development of e-business, where a corporation mainly operates in the field of computer system design or that of software edition and its activities are carried out in an establishment located in Québec. This 2017 Budget aims to improve the competitive and strategic advantage of Canada in the field of artificial intelligence, and, therefore, that of Montréal, a city already enjoying an international reputation in this field. It recognises that artificial intelligence, despite the debates over ethical issues that currently stir up passions within the international community, could help generate strong economic growth, by improving the way in which we produce goods, deliver services and tackle all kinds of social challenges. The Budget also adds that artificial intelligence “opens up possibilities across many sectors, from agriculture to financial services, creating opportunities for companies of all sizes, whether technology start-ups or Canada’s largest financial institutions”. This influence of Canada on the international scene cannot be achieved without government supporting research programs and our universities contributing their expertise. This Budget is therefore a step in the right direction to ensure that all the activities related to artificial intelligence, from R&D to marketing, as well as design and distributions, remain here in Canada. The 2017 budget provides $125 million to launch a Pan-Canadian Artificial Intelligence Strategy for research and talent to promote collaboration between Canada’s main centres of expertise and reinforce Canada’s position as a leading destination for companies seeking to invest in artificial intelligence and innovation. Lavery Legal Lab on Artificial Intelligence (L3AI) We anticipate that within a few years, all companies, businesses and organizations, in every sector and industry, will use some form of artificial intelligence in their day-to-day operations to improve productivity or efficiency, ensure better quality control, conquer new markets and customers, implement new marketing strategies, as well as improve processes, automation and marketing or the profitability of operations. For this reason, Lavery created the Lavery Legal Lab on Artificial Intelligence (L3AI) to analyze and monitor recent and anticipated developments in artificial intelligence from a legal perspective. Our Lab is interested in all projects pertaining to artificial intelligence (AI) and their legal peculiarities, particularly the various branches and applications of artificial intelligence which will rapidly appear in companies and industries. The development of artificial intelligence, through a broad spectrum of branches and applications, will also have an impact on many legal sectors and practices, from intellectual property to protection of personal information, including corporate and business integrity and all fields of business law. In our following publications, the members of our Lavery Legal Lab on Artificial Intelligence (L3AI) will more specifically analyze certain applications of artificial intelligence in various sectors and industries.

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  2. Mandatory mediation at the Small Claims Division: Merchants, be prepared!

    Lavery closely monitors new developments in consumer law and is committed to keeping the business community informed of the latest developments in this area of the law by regularly publishing newsletters dealing with new case law or legislative changes which may impact, influence, or even transform practices in the retail sector. The current projects of the legislator respecting judiciary case management of consumer law may very well modify the manner in which merchants handle customer complaints. In this respect, consumer law is a privileged child of the Code of civil procedure reform. Indeed, the Quebec government recently implemented a mandatory mediation pilot project for the Small Claims Division of the Court of Québec. On May 15, 2015, the Regulation to establish a pilot project on mandatory mediation for the recovery of small claims arising out of consumer contracts1 (the “Regulation”)2 came into force. Pursuant to the Regulation, mandatory mediation is imposed on the parties where the claim before the Small Claims Division arises from a consumer contract. A consumer contract includes any agreement between a merchant and a consumer for the acquisition of goods or services.3 When one considers that the Small Claims Division has jurisdiction to hear cases with a value of up to $15,000, it follows that a significant portion of the retail industry is covered by this pilot project. The pilot project, which is established for 3 years, only covers the judicial districts of Gatineau and Terrebonne,4 but we expect that the government will make it applicable throughout the province if the results are positive. To a certain extent, Quebec would follow suit with neighbouring Ontario, where mediation is mandatory for all matters that come before the Small Claims Court.5 WHAT JUSTIFIES MANDATORY MEDIATION? Mandatory mediation gives concrete expression to one of the guiding principles of the new Code of Civil Procedure (hereinafter, the “NCCP”) that came into force on January 1, 2016, which is to ensure accessibility to the courts and swiftness of civil justice. This is particularly illustrated by the fact that the legislator dedicated Title I of Book I of the NCCP to private dispute prevention and resolution processes. Contrary to these private dispute prevention and resolution processes such as negotiation, mediation and arbitration chosen by mutual agreement of the parties,6 the pilot project establishes mandatory mediation. The legislator therefore gives preferred treatment to judiciary claims between consumers and merchants, which may be explained by two objectives: (i) Free up the courts and promote swift access to justice Approximately 25% of the cases at the Small Claims Division concern claims involving consumer contracts.7 In addition, a study of the Office de la protection du consommateur published in 2010 reveals that 83% of the merchants continue to refuse mediation.8 One may think that the legislator wishes to reverse the trend and compel the parties to reestablish their communication in order to settle their disputes according to mutually agreed upon conditions. This measure will free up the courts, thus promoting swift access to justice. (ii) Restore the balance between the parties in a consumer contract The imbalance between consumers and merchants9 has always been a source of concern for the legislator. By making mediation mandatory as part of the pilot project, the government reaffirms its will to protect consumers by requiring merchants to discuss with them before an impartial third party in order to settle a dispute which ended up before the courts. Making consumer contracts subject to mandatory mediation a priority is explained by the fact that consumer contracts rank among the most common contracts, with personal consumption expenses in Quebec representing more than 100 billion dollars (which includes the automobile and food sectors).10 The obligation to submit these cases to mediation thus promotes maintaining harmony between the parties, which is an essential element to the sector’s health. WHAT MAY WE EXPECT? The process begins when the Small Claims Court clerk notifies the parties that they are subject to mediation.11 Our interpretation of the Regulation makes us conclude that this notice will be sent by the clerk once the defence is filed with the Court. The clerk must offer the mediation mandate to a mediator whose name is on the list of mediators that he has drawn.12 These mediators are lawyers or notaries certified by their professional orders.13 Once appointed, the mediator communicates with the parties to agree on a date and time for the mediation session.14 The process is intended to be swift: the mediator must hold the mediation session within 30 days following the date on which his mandate has been confirmed to him in writing.15 When a party fails to attend the mediation session so fixed or to agree on holding such a session, the mediator files with the court office a report stating that it is impossible to proceed with the mediation and the case may therefore be heard by the court.16 However, the court may penalize a party’s failure to participate in the mandatory mediation by condemning such party to pay the legal costs or damages or, if the faulty party is the creditor, by reducing or cancelling the interests payable to that party.17 If the mediation is successful, the parties file either a notice that the case has been settled or the agreement they have signed.18 If it is not, the mediator sends to the clerk, within 10 days of the mediation session, a report giving an account of the facts, the positions of the parties and the questions of law raised.19 The case may then be heard by the court.20 MAY ONE REQUEST TO BE EXEMPTED? Having a vested interest for the pilot project to be successful, the government has provided that a party may only be exempted from participating in the mandatory mediation session for a serious reason.21 A party who wishes to be exempted from mandatory mediation must make an application in writing to the court not later than 20 days after being notified by the clerk that a case is subject to mediation.22 The clerk informs the other parties of the application; they then have 10 days to present their observations in writing.23 HOW TO PREPARE FOR MEDIATION? By making mediation mandatory, the government sends a clear message to merchants: they will have to modify some of their complaint processing practices. In order to make the process efficient, and taking into account the fact that time with the mediator is limited, the prior preparation of the mediation session will have a significant impact on its orientation and on the outcome of the dispute. By being well prepared, a merchant will better understand his case, both from a factual and legal point of view, and will be able to highlight the weaknesses of the consumer’s case, if any. In order to be well prepared in the event that the merchant would face a suit and would then have to attend a mediation session, it is crucial for the merchant to do his homework in advance. Thus, he may find it beneficial to establish a clear complaint and claim management policy. Although the structure of the management policy may depend on the nature and the scope of the operations of the enterprise, merchants should minimally address the following questions when developing his policy: Are calls with consumers recorded? With their consent? Are reliable notes of all communications and interventions with consumers taken? In which way? Is there a particular person or persons assigned full-time to complaint and claim management or is the file entrusted with the representative who knows best about the facts of the case? Does the merchant wish to examine the goods which are the subject of the dispute? Does he want to give a mandate to an expert? How should he proceed? Is a response to the demand letter to be sent? In which cases? In which cases will the customer be contacted by phone? Are third parties or witnesses involved in the matter? May compensation, other than monetary compensation, be offered to the consumer in order to settle the dispute? --> a Are calls with consumers recorded? With their consent? b Are reliable notes of all communications and interventions with consumers taken? In which way? c Is there a particular person or persons assigned full-time to complaint and claim management or is the file entrusted with the representative who knows best about the facts of the case? d Does the merchant wish to examine the goods which are the subject of the dispute? e Does he want to give a mandate to an expert? How should he proceed? f Is a response to the demand letter to be sent? In which cases? In which cases will the customer be contacted by phone? g Are third parties or witnesses involved in the matter? h May compensation, other than monetary compensation, be offered to the consumer in order to settle the dispute? Once this policy is established, the following has to be done for each matter: establish the facts in dispute in chronological order prepare the documentary or material evidence (ex.: invoices, correspondence, recordings, etc.) determine what are the practices of the sector in similar situations determine the position and the arguments quantify the claim fix a scale to calculate how much the merchant would be prepared to pay to settle the claim --> a establish the facts in dispute in chronological order b prepare the documentary or material evidence (ex.: invoices, correspondence, recordings, etc.) c determine what are the practices of the sector in similar situations d determine the position and the arguments e quantify the claim f fix a scale to calculate how much the merchant would be prepared to pay to settle the claim Lastly, the merchant would be well-advised to hold regular meetings with legal counsel to take stock of the claims subject to mandatory mediation. This will allow him to validate the legal framework of his file and the strategy to adopt at the mediation session. If the merchant establishes a clear complaint and claim management policy and ensures that it is well implemented in his enterprise, these periodic meetings will be quick and efficient. WHAT ARE THE BENEFITS? Mandatory mediation offers definite benefits to the merchant. Firstly, the process is swift and cost-efficient. In fact, the services of the mediator are free since his fees are assumed by the Ministère de la Justice.24 As for the consumer, he can only be satisfied to be offered the opportunity to present his case to an impartial person without being subject to the usual judicial formalities before the court. Secondly, a successful mediation allows the merchant to avoid the risk of seeing the name of his enterprise associated with an unfavourable judgment, sometimes being cited out of context, thus allowing him to protect his image. Thirdly, mediation is a flexible process, the parties are free to negotiate the parameters of their settlement to achieve a mutually satisfying solution. Moreover, since mediation is confidential,25 the information shared during the process cannot be used in legal proceedings if mediation is unsuccessful. Lastly, the process may allow the merchant to better understand the consumer’s case and prepare accordingly for a trial should mediation fail. However, this statement is subject to a caveat: even if the mediation session reveals the other party’s cards, one must always remember that the parties are required to participate in good faith.26 In other words, the merchant should not participate in the mediation session for the sole purpose of verifying the solidity of the consumer’s case, but rather attend with the sole objective of trying to find a solution to the dispute.27 WHAT IS THE BOTTOM LINE? One has to keep in mind that with the pilot project which subjects the claims arising from a consumer contract to mandatory mediation, the legislator wants to promote the dialogue between consumers and merchants. The merchant may participate in this dialogue in an effective manner by establishing a clear complaint and claim mangement policy, which may also include a resolution process which would take place before matters are submitted to the court. Such an approach allows the merchant to quickly demonstrate the seriousness of his file, thus maximizing his chances of achieving a profitable settlement. A merchant can only derive benefits from the process, as establishing a dialogue with consumers shows that he has a clear understanding of his customers’ needs.   Regulation to establish a pilot project on mandatory mediation for the recovery of small claims arising out of consumer contracts, CQLR, c. C-25.01, r. 1. In accordance with articles 28 and 836 of the Act to establish the new Code of Civil Procedure, S.Q. 2014 c. 1. According to section 1 of the Regulation, the definition given to the expression “consumer contract” is that set out in article 1384 of the Civil Code of Québec, that is, “a contract whereby one of the parties, being a natural person, the consumer, acquires, leases, borrows or obtains in any other manner, for personal, family or domestic purposes, property or services from the other party, who offers such property and services as part of an enterprise which he carries on.” Prec., note 1, s. 1. Rules of the Small Claims Court, Reg. 258/98 (Ont.), s. 13.01. Prec., note 2, art. 1. Pierre-Claude LAFOND, L’accès à la justice civile au Québec : portrait général, Cowansville, Éditions Yvon Blais, 2012, p. 140. Pierre-Claude LAFOND, L’accès à la justice civile au Québec : portrait général, Cowansville, Éditions Yvon Blais, 2012, p. 138. Pierre E. AUDET, “La médiation obligatoire pour les petites créances d’au plus 15 000 $ découlant d’un contrat de consommation”, Justice privée et décrochage judiciaire, Les Entretiens Jacques-Cartier, Montréal, October 3, 2014. Luc THIBAUDEAU, Guide pratique de la société de consommation, Cowansville, Éditions Yvon Blais, 2013, p. 157. In 2014, the retail sector has represented in excess of 505 billion dollars in Canada: http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/trad15a-eng.htm. Id. Prec., note 1, s. 6. Id., s. 7. Id., s. 22. Id., s. 21.. Id., s. 26. Id., s. 27. Préc., note 1, s. 28. Id., s. 29. Id. Id., s. 2. For the purposes of the Regulation, the expression serious reason particularly means the existence of an order preventing a party from being in the presence of the other party, the fact that the travelling expenses related to the party’s participation in the mediation exceed the possible advantages or the fact that the parties have already participated in a mediation session for the same dispute. Id., s. 3. Id. Prec., note 1, s. 12. Id., s. 18 to 20. Id., s. 16. Id., s. 16.

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