Court of Appeal of Québec Mediation Service Program
Court of Appeal of Québec's voluntary mediation program.
Court of Appeal of Québec
|1998||Program implemented as a pilot project at the Court of Appeal|
|October 1999||Program made permanent|
In 1998, under the auspices of the Quebec Court of Appeal, the conciliation service program was implemented as a pilot project at the appellate court. Judicial mediation was a first in Canada and is still believed to be the only program of its kind anywhere. Judicial mediation refers to the fact that the process involves the full and active participation of an Appeal Court judge at each stage of the process. The Court of Appeal adopted officially the Mediation Service Program in October 1999, keeping the parameters set in the pilot project (CSP).
Taking into account the judicial evolution in western society, many courts, including the Court of Appeal of Quebec, have decided to initiate, within the traditional system, a system of judicial mediation with a view to reinvesting in the parties themselves their power to decide their dispute. As guardians of public order and democratic values, it is fitting that the judiciary participate with the community in transforming the classical justice system so that it is more reflective of social values. In doing so, the justice system bears witness to a lessening of the distance between the judiciary and the public and to the principle that society is better served when it is better understood (Summary).
The Program Features
The mediation service is open to all parties involved in civil, commercial or family litigation at the Appeal Court level. However, certain subject matters may not prove to be suitable (for example jurisdictional issues). Litigation in constitutional or criminal law is obviously excluded from mediation.
In all cases, both parties must sign a "Joint Request for mediation" form. This is the one and only form that has to be filled out and filed. The form is forwarded to the office of the Court as soon as possible after filing the notice of appeal. At any time before the court hearing the parties may request a mediation session. Parties not represented by counsel are also admissible to the mediation program.
It should be stressed that there are no additional costs to the parties. The Quebec Court of Appeal funds the program through its regular staff and the program operates under the general supervision of the Chief Justice.
Filing the request for mediation automatically suspends appeal proceedings. However, either party may decide to abandon the mediation program and return to the ordinary appeal procedure at any time.
A program manager receives the request and opens a file which is kept entirely separate from the Court of Appeal files. The program manager and the judge conciliator screen the request for mediation to evaluate the likelihood of settlement and the suitability of the issues for mediation. When necessary a telephone conference is held by the judge conciliator. This is to discuss the issues on appeal and the status of the negotiations in order to ensure that the parties have a real interest in a mediation. The telephone conference is also required to ensure that mediation is not being sought merely as a pretext to buy time in the ordinary court proceedings.
The parties must agree on one set of documents which together constitute the mediation file...The supporting documents are usually forwarded to the presiding judge-mediator usually one week prior to the date set for mediation. In practice, the mediation process, being very flexible, adapts to each individual situation.
The Scheduling of Mediation Sessions
A mediation session is scheduled within thirty days following reception of the request in writing. On average only one three hour session is required and it is usually held early in the appeal process. This is so the parties can avoid further major legal expenses and delays in obtaining official transcripts and preparing factums and annexes.
The Ground Rules and Procedure
At the beginning of a mediation session, the judge determines ground rules and procedure with the cooperation of the parties and their attorneys. Each mediation session is unique. The parties will structure it the way they want. It is important to stress this element because the heart of the mediation system and the probable reason for its success is it's capacity to be supple and adaptable.
The judge discusses a possible settlement jointly with the parties and their attorneys, but may meet with both parties together without their lawyers. The judge explores the possibilities, avoiding as much as possible expressing an opinion with regard to the judgement of the trial division. However, in some circumstances, the judge will feel at ease to express an opinion regarding a judgment rendered by the trial division. In those cases, the judge mediator may readily identify an oversight or weakness in the judgment. This, in an effort to further clarify the legal issues for the parties and to bring about a better understanding of what is at stake. However, as a general principle, the judge must totally abstain from giving an opinion on the validity of the judgment and leave the merits of the appeal for the Court...The judge can recommend specific solutions for settlement, but will never compel the parties to accept a settlement.
Discussions are not limited to the specific issues raised in the notice of appeal and some time is allowed for the parties to settle any related issues arising between them in other cases. Again, flexibility is encouraged and provided by conciliation and permits the parties to find a global settlement.
The Confidential Nature of Proceedings
The confidential nature of mediation proceedings is crucial to productive negotiations. As a matter of ethics, the parties voluntarily commit, on the request for conciliation form, to keep all matters strictly confidential and to refrain from disclosing the substance of all discussions. There are no transcripts or summaries of the mediation session and any notes taken by the judge mediator are eventually shredded.
The Settlement Agreement
If the parties are successful in resolving their differences through mediation, a settlement agreement is drafted by the attorneys and signed by the parties. The settlement agreement is then ratified by an independent panel of three judges of the Court of Appeal at no extra costs and without the need of a written motion. Once ratified, the judgement is as enforceable as any other judgement of the court. In a few cases where settlement is not achieved in a first session, the parties may be granted a short delay to further consider their positions and return for a follow-up session which are often successful. Even in failure, the mediation exercise will have permitted the parties to better understand the issues and this will prove to be useful in the preparation of the factums and in reducing the time of a hearing. Consequently, if the mediating session does not end up with settlement, the exercise will prove to be beneficial in providing efficient case management (CSP).
Within two years of the program's existence, "over 200 cases ha[d] been conciliated in civil, commercial and family matters and over 80% ha[d] been settled successfully, after one mediation session" (Summary).