FAQ

MEDIATION

Why is mediation increasingly popular?

Is going into mediation a sign of weakness?

What is the role of attorneys in mediation?

When should you opt for mediation?

What are the differences between a mediation and an amicable settlement conference?

 

TRAINING

For whom are my courses intended?

Are these courses eligible within the framework of the Workforce Skills Development Law?

What method is used in these courses?

 

Why is mediation increasingly popular?

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Because mediation is a particularly sophisticated and satisfying mode of conflict resolution, which today’s stakeholders find quite appealing. Its users — lawyers, clients, organizations, companies — now see mediation as a preferred tool whose multidimensional nature not only maximizes the possibilities of conflict resolution, but satisfies their quest for justice.

The success of mediation is rooted in a number of factors. Firstly, the emergence of a generation of better educated and informed individuals who refuse to allow an unyielding authority to make their decisions for them. Secondly, a trend that recognizes the importance of emotions and psychological needs in all human activities and interactions. Thirdly, the evolution of law and the way of conducting trials. These have become long, complex and costly and users of the courts are seeking another way of meeting their need for justice.

Given these social trends, today’s individuals are developing their own definition of what is fair in a conflict, and feel a need to settle a case accordingly. Their definition of justice is highly personal and often based on human and emotional considerations, which the rules of law and evidence cannot satisfy.

Mediation provides a pertinent response to this quest, given the variety and sophistication of the tools for analysing a case as well as the advantages it offers clients and their attorneys:  

 

It is important to recognize that mediation would not have the valued-added it offers in the resolution of disputes without the parallel existence of the exceptional legal system based on the rule of law enjoyed in democratic societies. Thanks to the integrity and effectiveness of these systems, mediation emerges as a preferred opportunity to exert control over the outcome of the conflict and to develop a settlement consistent with the participants’ quest for justice. As a result, it is viewed as the best process for obtaining, before trial, concrete, complete and risk-free justice, at a much lesser cost. On the other hand, the reassuring existence of our functional legal system constitutes the best assurance that mediation will not become a forum for the most powerful.

 

Is going into mediation a sign of weakness?

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Many fear that resorting to mediation may be perceived to mean that one’s case has certain weaknesses or that one is prepared to make major concessions. This fear is understandable, and was particularly prevalent some 15 years ago when the process was unknown. The implementation and institutionalization of mediation in all western judicial cultures since the 1990s show that it is now considered by governments as well as tribunals, Bar associations and many organizations, as a sophisticated and advantageous mode of conflict resolution, which has been added to existing avenues for obtaining justice.

While it is true that any negotiated settlement involves concessions or compromises, these will only be made if the full mediation exercise convinces and satisfies the parties that they have an interest in making them. It is the process that leads participants to make concessions, and not the will to make concessions that leads participants to the process. Consequently, concessions are not a form of surrender, but rather intelligent and satisfying solutions for settling a dispute.

 

What is the role of attorneys in mediation?

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In mediation, the attorney serves as his client’s representative and advisor. The active role he plays throughout the process is key. It is he who assesses, with his client, whether or not to opt for mediation. He proposes the process, organizes it, and participates in the selection of the mediator. He prepares the file and the client for mediation. He presents the points of the case during the discussions and evaluates the file at every stage of mediation. He can also deal with delicate matters in caucus with his client, with or without the mediator. Finally, he negotiates for and with his client, and with him, decides whether or not to settle. The lawyers are also the ones who generally draft the agreement, which has been reached. The lawyers and their clients are the ones who have a full grasp of the information, the facts of the dispute, the preferred solutions, and the negotiation strategies to bring about a resolution.

Throughout the process, the lawyer and his client benefit from the dynamic, structured and respectful climate created by the presence of an impartial mediator. The mediator is master of the process. He structures the debate and ensures that all parties have to opportunity to express themselves in order to generate an in-depth understanding of every aspect of the conflict. During the caucuses, he addresses every dimension of the dispute, both material and human, helping the parties become more aware of their needs and priorities, in order to arrive at a satisfactory settlement.

While the lawyers and the parties focus on pressing their claims and moving forward with the negotiations, the mediator works to identify points of commonality, zero-in on priority interests, unblock impasses, objectify positions and help everyone move forward. It is the sum total of the interventions of all participants that makes mediation such a richly rewarding option.

 

When should you opt for mediation?

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Given the many advantages of mediation, a conflict should be analyzed to determine if and when it should be taken to mediation. This analysis is conducted by the clients and their attorneys, to determine the reasons for this approach and the most opportune time for engaging in this process. To this end, they must analyze their true interests and not only the validity of their position in the dispute, in the abstract.

In some cases, it is best for the process to take place before judicial procedures. If timeframes, stress, costs or disadvantages related to the dispute are likely to result in an ineffective or less satisfactory legal resolution, opting for mediation as quickly as possible can lead to a settlement before the conflict gets bogged down in acrimony. For example, if an executive does not agree on a clause in a contract with a supplier, but would like to retain this supplier, it would be to his advantage to settle the dispute through mediation rather than risk legal procedures that could cause relations to deteriorate.

In other instances, it may be that the parties and their attorneys would prefer to secure their legal position before resorting to mediation. As a result, it is important for the parties to obtain useful information for defending their rights (motions, examinations, expertise, legal research), in which case they must do whatever is best suited to their interests. In these cases, mediation will become an appropriate solution once these initial needs have been met.

What is important to bear in mind, is that mediations can be carried out just as easily before trial and once the legal file has been constituted as before the institution of the proceedings. The opportunity to opt for mediation can change as the case or the needs of the parties evolve. The lawyer and his client must analyze them on a regular basis, in order to benefit from this approach to settlement at the most opportune moment.

What are the differences between a mediation and
an amicable settlement conference?

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Analysis of the theoretical models of mediation and ASC

Analysis of the differences regarding the evaluative model in mediation and in ASC

Since 2003, when Quebec law was changed to authorize judges to preside over Amicable settlement conferences (ASC), it has been desirable for the administration of justice in general, and the benefit of individuals in particular, for common-law judges to be able to offer this service within the framework of their duties. I would go so far as to say that these judges are the ones who, for a few years now, have been actively promoting this type of meeting, making this form of participatory justice much more popular in Quebec than it had been in the 1990s, when mediation was already quite widespread elsewhere in Canada and the United States.

 

In both ASC and mediation, the objective is to involve the parties and their attorneys in a meeting enabling them to settle the dispute themselves, with the help of an impartial third party who presides over the meeting. In the case of an ASC, this third party is a judge and, in the case of a private mediation, a professional. In both instances, we are dealing with a voluntary process, that is confidential and without prejudice, and in which the third party administering the process has no decision-making power.

The main difference between the two processes lies in the fact that ASCs can only be held within the framework of legal proceedings, while mediation can take place as soon as a conflict arises, either before judicial proceedings have been initiated, or at any other time between the originating petition and the trial, and even following the latter.

An ASC involves no fees for the parties (other than lawyers’ fees) as it is part of the services provided by the courts of justice. Also, in the case of an ASC, the settlement can be ratified by the judge and be as binding as a ruling. In mediation, the parties also pay the mediator’s fees, prorated according to their number, and the resulting agreement is a transaction concluded by the parties like any settlement negotiated between lawyers. This transaction can be homologated according to Section 2633 of the Quebec Civil Code.

In an ASC, the judge is designated while, in mediation, the parties and their attorneys can choose the mediator, to ensure that he meets a number of criteria, which they deem to be pertinent: these can be his mediation expertise, his model and style of mediation, his knowledge of the field involved in the conflict, or his reputation.

Apart from these distinctions, at this point in time and from a practical viewpoint, it is impossible to compare these two processes in a systematic manner. Indeed, the model and style of a mediation or ASC depend on the approach and personality of those who conduct it, the model and tools they favour, as well as their comfort zone with regards to the emotions, which often play a role in these processes. When dealing with a conflict involving widely divergent positions, bringing the parties to define on their own, in a collaborative manner, the way in which they can claim justice for themselves is both a science and an art. This role is not exclusive to any profession or function, nor to any single theoretical model.

 

Analysis of the theoretical models of mediation and ASC

With regards to the analysis of the theoretical models of these processes, literature tells us that there are several different types of mediation:  

1) classic (focused on the process and the resolution of problems, and based on interest-based negotiation)  

2) facilitative (focused on participatory justice and assisted positional negotiation) 

3) evaluative (focused on law and/or the mediator’s opinion)

4) soft (focused on people and emotions)

5) transformative (focused on internal and relationship repair).

Each of these models has its own well-defined dynamics and structure, helping users select the process best suited to their needs. No model is better than another, since the advantage of alternative models of conflict resolution lies in the flexibility that allows them to adapt to the needs. Mediation experts are even quite capable of integrating the various components of these models in their mediations.

A recent analysis by Professor Jean-François Roberge, and published in La Revue de prévention et de règlement de différends (Éditions Yvon Blais, 2007, vol. 5, no 3), addresses the theoretical models of ASCs in Canada and in Quebec. This analysis reveals that, as drafted, legislation in both Canada and Quebec allows judges to use either the evaluative, facilitative or classic model. According to Professor Roberge, it is the writings made on ASCs, which describe the specific parameters of the process advocated in each jurisdiction. In Quebec, these writings emanate from material produced, notably, by the honourable judges Louise Otis of the Quebec Court of Appeal, Susanne Courteau and Ginette Piché of the Quebec Superior Court, as well as literature produced for the training of judges. Generally speaking, the theoretical model advocated therein resembles the facilitative or classic models. Ultimately, the choice will depend on the orientation adopted by the judge: assisted negotiation targeting settlement in the first instance, or assisted interest-based negotiation leading to a settlement in the second. It is also possible for it to be a bit of both.

 

Analysis of the differences regarding the evaluative model in mediation and in ASC

One topic of discussion in legal and university circles deals with whether or not a judge in a settlement conference can use the evaluative model and give his opinion on the merits of the case or the outcome of the dispute. In the above-mentioned writings, Quebec courts have adopted a clear position against judges addressing these issues, while in practice, we note the existence of contradictory schools of thought. In my view, this situation has created a degree of confusion among users.

These different schools of thought may originate from the experience of mediation over the past fifteen years or so. Field experience reveals that, in mediation, the parties and their attorneys want feedback from the mediator, as they wish to benefit from the special position and detachment of this impartial third party and be party to his impressions. Understandably, as the latter is the first neutral person to have the opportunity of hearing, viva voce both sides of the issue, his impressions can be invaluable without being compromising, since he has no decision-making power. Although his role is not to issue a legal opinion or replace the parties’ attorneys, he can easily provide relevant feedback on some of the matters discussed before him as well as their inherent difficulties. He must offer this feedback in an ethical and professional manner that is respectful of the positions of the parties. Since he is no more than a legal professional, his feedback will carry whatever weight the parties and their lawyers choose to give it, and will serve simply as an additional analysis tool — one of the many offered by the process. For this reason, in private mediation, we often favour the use of the evaluative model or of a hybrid that adds feedback to the classic model.

We can easily imagine that the same expectation is prevalent in an ASC. However, the use of the evaluative model does raise delicate questions within the framework of ASCs. In his analysis, Professor Roberge informs us that there are profoundly divergent views on this subject, both in the theoretical models and in practice. Indeed, in Alberta and British Columbia, theoretical models authorize the use of the evaluative model while in Quebec, they are not recommended. However, Mr. Roberge reveals through an empirical study that, paradoxically, in practice, the facilitative or classic models are favoured in Western Canada, while the evaluative model is in Québec. Professor Roberge invites to conduct further research into these differences and paradoxes, notably through an examination of the motivations of judges and/or users with regards to these processes.

In my view, this matter warrants analysis by legislators and the courts, as well as by the Bar and  users of the judicial system, given the ethical issues it raises. In fact, the primary function of a judge, as it has always been and as it is perceived by laymen, is to rule on a conflict after hearing the evidence presented in court. In an ASC, because of this function of the judges, feedback by the judges on the merits of the parties’ positions or the outcome of the conflict could exert considerable influence on them, without giving them the opportunity of presenting their case, as they would have done at trial. Even if the judge is not the one who would be hearing the case, there is a risk of confusing the roles, or of giving individuals the impression of expeditious justice based on equity and not consistent with the established model. However, the idea of this process is to restore the parties’ control over the outcome of their dispute as well as the feeling that, through the process, justice has been done. In my opinion, this risk is even greater in Quebec where, given its history and culture, the impact of an individual representing authority and moral values has remained etched in the collective subconscious.

Obviously there are different schools of thought among both judges and users. Indeed, it is not uncommon to hear a lawyer say that he is going into an ASC to allow his client to benefit from a judge’s opinion. Just as real is the discomfort relayed by some lawyers regarding the comments the judge made on the merits of the case. Clearly, much more extensive analyses will be needed to properly define, understand and evaluate all together, the individual needs of users and the systemic interests of the judicial function. The different definitions and expectations that currently exist regarding ASCs create a situation that must be addressed to ensure that services proposed by the courts are coherent and consistent, providing users with specific markers for identifying the various models available to them. To be followed.

 

For whom are my courses intended?

My courses have been developed for anyone wishing to develop or enhance their skills in the areas of mediation, conciliation, negotiation, or conflict resolution. They are of particular interest to mediators, conciliators, ombudsmen, negotiators, lawyers or notaries, those responsible for human resources, psychologists, and any other professional or organization involved in conflict management of any type.

 

Are these courses eligible within the framework of the Workforce Skills Development Law?

Yes. As an instructor, I hold a certificate of accreditation in compliance with the Act to promote workforce skills development and recognition.

 

What method is used in these courses?

These courses obviously involve didactic presentations, sometimes accompanied by videos, to present various theoretical aspects. However, the essence of the course focuses on practice, with simulations, role-playing, workshops, practical exercises and discussions of concrete cases. My courses are valued not only for their rich contents but for their dynamic presentation and the variety of concrete examples drawn from fieldwork.