Private ADR Processes and
the Proposed Code of Civil
Procedure
Professor Frédéric Bachand
Faculty of Law, McGill University
frederic.bachand@mcgill.ca
I. A philosophical paradigm shift
II.Mediation: a solid—though incomplete—
framework
III.Arbitration: a misguided and ill-informed effort
I. A philosophical paradigm shift
A. The Dark Ages of ADR
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National Gypsum, [1964] S.C.R. 144
B. From hostility to tolerance
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Zodiak, [1983] 1 S.C.R. 529
1986 reform of Quebec arbitration law
C. From tolerance to promotion
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Laurentienne-Vie, [2000] R.J.Q. 1708 (C.A.);
Desputeaux, [2003] 1 S.C.R. 178; Dell, [2007] 2
S.C.R. 801
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Judicial mediation programs
Lawyers’ evolving ethical duties
I. A philosophical paradigm shift
D. Public adjudication relegated to a subsidiary role
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Article 1(1): « Parties must consider the private
modes of prevention and resolution [direct
negotiation, mediation, arbitration] before referring
their dispute to the courts. »
II. The proposed mediation
framework
A. The global trend to regulate private mediation
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UNCITRAL Model Law on Int’l Commercial Conciliation
(2002); U.S. Uniform Mediation Act (2001, 2003); European
Directive on Civil/Commercial Mediation (2008)
B. What’s the point in regulating mediation?
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***Confidentiality/privilege
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Effect of mediated settlements
***Quality/integrity of mediation
Effect of undertakings to mediate (i.e. mediation
clauses)
Prescription
Little need to regulate mediation procedure
II. The proposed mediation
framework
C. Highlights of the proposed framework
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Robust impartiality/disclosure standards (Articles 3,
610(3))
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Good faith obligations clearly affirmed (Article 2(1))
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Mediation’s darker side acknowledged and taken
fairly seriously (Articles 2(1), 616, 618, 619(2))
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Mediator’s immunity (Article 608)
Confidentiality/privilege (Articles 4, 611(1))
An interesting take on the professionalization debate
(Article 611(2))
II. The proposed mediation
framework
D. What’s not (and arguably should be) in the proposed
framework
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Mandatory mediation--at least as a general rule (?)
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Costs rules designed to incentivize the parties
•
Halsey v. Milton Keynes General NHS Trust,
[2004] EWCA Civ 576
•
Leicester Circuits Ltd. v. Coates Brothers Plc,
[2003] EWCA Civ 333
III. The proposed arbitration
framework
A. The 1986 provisions
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Followed closely UNCITRAL Model Law on Int’l
Commercial Arbitration; implemented 1958 New York
Convention
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Monist regime: applicable to both domestic and int’l
arbitration
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Though not perfect, by-and-large worked well-especially further to clarifications/support offered by
SCC and CA
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Arbitration community--who was not consulted-expected nothing more than a few fixes
III. The proposed arbitration
framework
B. The trouble with the draft bill
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***A complete (and useless) rewrite/restructuring of
the provisions
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An unacceptable broadening of the courts’ power to
review arbitration award: « [...] the award is contrary
to public order or would bring the administration of
justice into disrepute »
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Unexplainable omissions: e.g. Article 940.3 of current
C.C.P.
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Absurdities: e.g. Article 631
Bottom line: arbitration less efficient, Quebec
arbitration law moving away from internationallyaccepted standards
III. The proposed arbitration
framework
C. Several worthy proposals
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Confidentiality (Article 4)
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Judicial review of arbitrators’ negative jurisdictional
rulings (Article 633(2))
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Provisional and conservatory measures (Articles
631(2), 637, 644)
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***But: those changes don’t compensate for
fundamental weaknesses
Immunity of arbitrators (Article 608)
Default number of arbitrators: from three to one in
domestic cases (Articles 625ff.)
III. The proposed arbitration
framework
D. Why it matters
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Efficient commercial arbitration fosters economic
development
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Promotes rule of law, lowers cost of doing
business
Quebec’s untapped potential as a world-class int’l
arbitration forum
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Bilingualism, bijuridism, accessibillity, low cost of
living, geo-political neutrality, reputation of
excellence in the field... and world-class nightlife
and restaurants ;)