The coming into force of the new Code of Civil
Procedure1 in the fall of this year will be a
turning point regarding the use of private dispute prevention and
resolution methods the parties. For example, the rules of procedure
will now require the parties to consider making use of such methods
prior to even instituting court proceedings. Among the options
available is private mediation.
The purpose of mediation is to allow the parties to prevent a
dispute or resolve one which has already arisen, through the
intervention of a neutral third party, the mediator. The mediation
process is consensual and strictly confidential.
The mediator does not render a decision and makes no rulings on
questions of fact or law. He or she is rather the fulcrum of the
mediation process. The mediator's role is to clearly identify
the issues at stake and to facilitate dialogue between the parties
so as to promote the conclusion of a settlement. The parties to the
mediation process often have the mistaken impression that it is up
to the mediator to find or even impose a solution to their dispute,
forgetting that they are solely responsible for the outcome of
their mediation session: it is up to them to reach a settlement
agreement they deem acceptable.
In order to promote productive dialogue and increase the
parties' chances of resolving their differences, it is
essential that they come to their mediation session fully
Some tips for getting the most out of a private mediation
Before coming to the mediation table, each party must engage in
an exercise of reflection and analysis. Careful and thorough
preparation will then result in a more productive mediation
Here is some key advice in that regard:
Master the facts:
Knowing the facts of the matter inside out (for example, the
timeline of events, the important dates, the amounts involved,
etc.) is essential, as this will allow each party to substantiate
its arguments and to reason and negotiate more effectively.
Clearly understand the
applicable law: Thorough knowledge of the law applicable
to the issues on which the parties disagree will allow the parties
to fully appreciate the risks associated with taking the matter to
court, as well as to identify and understand the strengths and
weaknesses of each other's arguments.
Carefully consider the
underlying interests of each party: In addition to
mastering the facts and understanding the law, it is essential that
each participant in the mediation be constantly mindful of the
interests of all parties. An in-depth analysis of the dispute and
its potential consequences will allow everyone to identify their
short-term and long-term interests and thereby determine their
needs. However, it is equally important to analyze the interests of
the other parties. This will lead not only to more productive
negotiations, but also to more creative proposals which have better
chances of culminating in a settlement. That being the case, the
parties should avoid engaging in a process such as mediation with
preconceived or inflexible ideas. Such a mindset may detrimentally
limit the discussions to superficial aspects of the dispute and
reduce, as a result, the chances of reaching an optimal and
comprehensive agreement. Mediation demands creativity and
Agree on a mediation
protocol: As mediation is consensual, it is important to
agree on a framework as well as on functional details such as
confidentiality rules, the location of the sessions, the identity
or remuneration of the mediator and the definition of the dispute.
It is also essential to stipulate that any settlement be put in
writing, in order for it to be more easily enforceable if necessary
and also avoid any subsequent litigation regarding its existence or
Regardless of the goals that each party may have as to the
result sought to be achieved through the mediation process, it is
essential to approach each session with an open mind and to
actively listen to everything being said at all times.
1. Bill 28 (2014, chapter 1) – An Act to
establish the new Code of Civil Procedure
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).