Mediation and Arbitration: Break Free of Covid-19 and Quebec Bill 96 Restraints

Most people today, when caught in a commercial dispute that they can’t resolve by themselves, turn to a respected impartial person to settle the matter. In days of old, that “neutral” would have been a wise elder, a religious authority or a feudal lord, who would hear the parties’ contentions in his courtyard.

In recent times, as the law has become exponentially more complex, that impartial person is a Judge and the courtyard - a Courthouse. In many ways this has been an improvement, but one feature of the modern incarnation of justice is worse than before- the queue of litigants has gotten much longer, and the line towards a hearing date moves at a snail’s pace.

It may be ironic that the detailed rules of law, procedure and evidence that were created to deliver better justice have also worked to delay it. As well, many disputants can simply not afford the often-huge expense of taking a case to trial. Nor the displacement of focus from their other priorities. Nor the emotional stress suffered. As a result, there is a clarion call for “Better Access To Justice”.

In Quebec, the policymakers heard this call and gene-spliced the modes of negotiation, mediation and arbitration into the DNA of the justice system. That DNA includes the Codes of law, the day-to-day practices of the courts and the instruction of lawyers. These “gene edits” put the modes of alternative dispute resolution (ADR) at the forefront of better access to justice. More to the point, and as many argue, calling these modes “alternative” is now a misnomer. They are mainstream

The modes of ADR permit disputes to be managed in a much more favourable timeline, not least because the parties do not compete with litigating plaintiffs and defendants to get access to the courts. Also, unlike parties that appear in court, the parties in a mediation session or arbitration hearing have the advantages of privacy, shielding their testimonies and business information within the cone of confidentiality.

Naturally, it has taken time for these new approaches to gain traction. And then the Covid-19 virus struck in March 2020, erecting new hurdles on the road to justice. Responding to this challenge, proponents of ADR began conducting mediation and arbitration on online platforms.  

Then alas, in a “simple twist of fate”, on June 1st of this year, Bill 96, the Quebec government’s amendments to strengthen The Charter of the French Language, placed new hurdles on the road to justice for those who wish to plead in English and be assured that the judge understands their testimony. These new hurdles make it opportune to take a closer look at the advantages that ADR provides.

Under Bill 96 "legal persons", e.g., a corporation, can no longer file pleadings in English unless they are  paired with a French translation by a certified translator. (Recently, Justice Chantal Corriveau suspended these provisions of the law pending the full hearing later this year on the court challenge.) Judges are no longer required to understand or speak in English.

“Advantage: mediation”. In the mediation route of ADR, the need and burden to translate the documents underlying the dispute is absent. The challenges of finding certified translators and the delay of translating do not exist. Those impediments to a court filing balloon if “pleadings” is interpreted expansively to include the thick stack of exhibits often attached. The need to certifiably translate those could run into thousands of dollars.

Meanwhile, while we await the outcome of challenges to Bill 96 and probable appeals, the need to resolve disputes does not go on holiday.

Mediation is a catalyst - a substance that facilitates or speeds a chemical reaction. It is an agent that provokes a significant change.  In the field of dispute resolution, a mediator is a person who facilitates a “resolution reaction”. They are agents that bridge chasms and help transform a dispute into a settlement.

Mediation carries a suite of advantages. As compared to the years litigation takes, it often takes only a day or two.  Even if it takes longer, the parties work with the mediator to set the timeline. As a result, it is much less expensive, causes less stress, and allows the parties to focus on their businesses instead of endlessly reviewing documents. The parties select their own mediator and together craft a solution to their legal dispute that also makes business and emotional sense. Confidentiality is the guardrail that promotes these results.

Arbitration, whereby an adjudicator usually issues a binding decision, also offers an array of advantages compared to going to court. The parties get to select their decider (e.g., for his expertise and reputation). And work with her to limit the number of witnesses called and written evidence submitted. Here, confidentiality is also a hallmark. And, unlike court requirements under Bill 96, there is no need to translate “pleadings.”

But is ADR enforceable? Yes. When mediation results in a settlement agreement or the arbitrator issues a decision, the parties can certify it in court so that there is a judgment to enforce.  ADR is flexible. If a mediation does not work out, or a settlement is only partial, the parties can always turn to arbitration or the courts.

The advantages to the parties in ADR getting to choose their own neutral should now include language proficiency. The parties can ensure that the neutral can understand and speak to them in their own languages.  In mediation and arbitration there is no bar to choosing a fluent-in-English mediator, who conducts the session entirely in English. English speakers should not have to defer their expectations of justice for years until challenges to Bill 96 run their course.

There have long been persuasive reasons for choosing mediation and arbitration to access justice.  The challenges of Covid-19 and Bill 96 allow us to even better appreciate and practice these modes of resolving disputes.

Richard Levy and Nancy Cleman are Montreal lawyers and proponents of mediation and arbitration.