Personal and business disputes are a fact of life. In commercial matters, in matrimonial matters, in estate matters, people legitimately have differences of opinion and all too often, these differences go to Court.<\/p>\n
In Court, there are winners and losers, formal rules of proof and lawyers arguing the law. All in all, a costly and stressful process that frequently leads to an outcome that is unsatisfactory to either party, even the winner!<\/p>\n
Because our society has become more complex, the cost of resolving disputes via the litigation process has become astronomical. Furthermore, the delays inherent in solving disputes by way of the litigation process are such that justice is often denied.<\/p>\n
Notwithstanding these disadvantages, litigation is the path that most people choose to resolve their apparently irreconcilable differences.<\/p>\n
This is the case despite the fact that the Quebec Code of Civil Procedure<\/em> expressly states in its preliminary provisions, that the purpose of the Code is to provide \u201cthe means to prevent and resolve disputes and<\/strong> avoid litigation<\/strong> through appropriate efficient and fair-minded processes that encourage the persons involved to play an active role\u201d.<\/p>\n Article 1 of the Code<\/em> provides that the main private dispute prevention and resolution processes are negotiation between the parties and mediation and arbitration, in which the parties call on a third person to assist them.<\/p>\n The Code<\/em> even goes further and provides that \u201cParties must consider private prevention and resolution processes before referring their dispute to the Courts\u201d.<\/p>\n In addition, the Code of Professional Conduct of Lawyers<\/em>, CQLR, c. B-1, r. 3 also deals with private prevention and resolution processes, Tucked away in Division II, entitled \u201cDuties pertaining to mandates\u201d is the following ethical rule:<\/p>\n What do these words mean?<\/p>\n To the best of my understanding, there are no appellate cases discussing this provision.<\/p>\n The Barreau du Qu<\/em>\u00e9bec<\/em> considers that this article is part of a lawyer\u2019s broader duty of providing a client with ongoing information and advice. From the text, it appears that the obligation is continuous<\/strong> and that failure to comply may compromise the client\u2019s capacity to choose from various available courses of action. In short, lawyers have a duty to inform their clients about all available resolution mechanisms, including negotiation and mediation.<\/p>\n Unlike a Judge, a mediator has no power to decide and bind the parties. The objective is to assist parties, via an informal process, to help them solve their problems by participating in a controlled negotiation process, on a confidential basis. There are no formal rules of evidence, no formal rules of procedure. The mediator is an impartial third party whose job is to listen and to assist the parties to look past their differences and reach a creative solution that is a win-win.<\/p>\n But make no mistake, the process, if conducted well, can lead to good results, and there are techniques to help the parties achieve success, which I will address in a series of future posts.<\/p>\n As a certified mediator for civil, commercial and labour matters, I would be pleased to assist if ever the occasion arises.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Personal and business disputes are a fact of life. In commercial matters, in matrimonial matters, in estate matters, people legitimately have differences of opinion and all too often, these differences go to Court. In Court, there are winners and losers, formal rules of proof and lawyers arguing the law. All in all, a costly and […]<\/p>\n","protected":false},"author":12,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[5],"tags":[],"class_list":["post-11420","post","type-post","status-publish","format-standard","hentry","category-litigation"],"acf":[],"yoast_head":"\n\n