Private ADR Processes and the Proposed Code of Civil

Procedure

Professor Frédéric BachandFaculty 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

A. The Dark Ages of ADR

• National Gypsum, [1964] S.C.R. 144

B. From hostility to tolerance

• Zodiak, [1983] 1 S.C.R. 529

• 1986 reform of Quebec arbitration law

C. From tolerance to promotion

• Laurentienne-Vie, [2000] R.J.Q. 1708 (C.A.); Desputeaux, [2003] 1 S.C.R. 178; Dell, [2007] 2 S.C.R. 801

• 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. »

I. A philosophical paradigm shift

A. The global trend to regulate private mediation

• 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?

• ***Confidentiality/privilege

• ***Quality/integrity of mediation

• Effect of undertakings to mediate (i.e. mediation clauses)

• Effect of mediated settlements

• Prescription

• Little need to regulate mediation procedure

II. The proposed mediation framework

C. Highlights of the proposed framework

• Robust impartiality/disclosure standards (Articles 3, 610(3))

• Good faith obligations clearly affirmed (Article 2(1))

• Confidentiality/privilege (Articles 4, 611(1))

• An interesting take on the professionalization debate (Article 611(2))

• Mediation’s darker side acknowledged and taken fairly seriously (Articles 2(1), 616, 618, 619(2))

• Mediator’s immunity (Article 608)

II. The proposed mediation framework

D. What’s not (and arguably should be) in the proposed framework

• Mandatory mediation--at least as a general rule (?)

• 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

II. The proposed mediation framework

A. The 1986 provisions

• Followed closely UNCITRAL Model Law on Int’l Commercial Arbitration; implemented 1958 New York Convention

• Monist regime: applicable to both domestic and int’l arbitration

• Though not perfect, by-and-large worked well--especially further to clarifications/support offered by SCC and CA

• 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

• ***A complete (and useless) rewrite/restructuring of the provisions

• 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 »

• Unexplainable omissions: e.g. Article 940.3 of current C.C.P.

• Absurdities: e.g. Article 631

• Bottom line: arbitration less efficient, Quebec arbitration law moving away from internationally-accepted standards

III. The proposed arbitration framework

C. Several worthy proposals

• Confidentiality (Article 4)

• Immunity of arbitrators (Article 608)

• Default number of arbitrators: from three to one in domestic cases (Articles 625ff.)

• Judicial review of arbitrators’ negative jurisdictional rulings (Article 633(2))

• Provisional and conservatory measures (Articles 631(2), 637, 644)

• ***But: those changes don’t compensate for fundamental weaknesses

III. The proposed arbitration framework

D. Why it matters

• Efficient commercial arbitration fosters economic development

• Promotes rule of law, lowers cost of doing business

• Quebec’s untapped potential as a world-class int’l arbitration forum

• Bilingualism, bijuridism, accessibillity, low cost of living, geo-political neutrality, reputation of excellence in the field... and world-class nightlife and restaurants ;)

III. The proposed arbitration framework