Mediation or arbitration?

Mediation

Mediation is a private dispute resolution process whereby the parties agree to ask a third party, the mediator, to assist them in finding a solution to their dispute. Mediation is a flexible approach. The parties retain full control over its progress and final result. In a private and confidential setting, the mediator is there to help the parties find solutions to their own conflict and not to impose solutions.

Advantages of mediation
  • Quicker with more flexibility;
  • Possibility to consider more solutions than those expected from a court decision;
  • Preservation of a communication link between the parties;
  • Confidentiality.
Prerequisites for mediation
  • Requires the consent of all the parties;
  • Requires a real intent on both sides to reach a solution throughout the process;
  • Requires compromises from all the parties with regard to their demands;
  • The parties have to assume the fees and expenses of the mediator.

Arbitration

Arbitration is a private dispute resolution process whereby the parties agree to submit their dispute to an arbitrator for decision. The arbitral award shall be final and without appeal. It can be probated by a court, which makes it enforceable in the same way as a civil judgment. It is possible to go directly to arbitration or to resort to arbitration after mediation, where it has not resolved the dispute.

Advantages of arbitration
  • The process can be faster than going to court;
  • The parties can choose the person who will decide on their dispute;
  • The process is confidential and journalists have no access there;
  • The decision of the arbitrator being final, the dispute is settled.
Prerequisites for arbitration
  • Requires the consent of all the parties;
  • There is no possible call against the decision of the arbitrator;
  • The court cannot revise the merit of the arbitration judgment, nor correct the errors of right or de facto that the arbitrator could have committed;
  • The parties have to assume the fees and the expenses of the arbitrator.

Mediation and arbitration: unavoidable private dispute prevention and resolution processes

Since the coming into force of the new Code of Civil Procedure of the province of Québec in January 2016, parties to a dispute must consider private dispute prevention and resolution processes before referring their dispute to the courts. The main private dispute prevention and resolution processes are mediation and arbitration.

Parties who enter into a private dispute prevention and resolution process do so voluntarily. They are required to participate in the process in good faith, to be transparent with each other, including as regards the information in their possession. They choose the mediator or arbitrator jointly and must undertake to preserve the confidentiality of anything said, written or done during the process.  They have to co-operate actively in searching for a solution.They are alsor equired to share the costs of the process.

Participation in a private dispute prevention and resolution process other than arbitration does not entail a waiver of the right to act before the courts. However, the parties may undertake not to exercise that right in connection with the dispute in the course of the process, unless it proves necessary for the preservation of their rights.