Practical Resources and Tools
Understanding how mediation and arbitration work can help you choose a process that is appropriate for the dispute and prepare for it effectively. Explore answers to frequently asked questions about costs, timelines, confidentiality, the role of the mediator or arbitrator, and the legal effects of a settlement agreement or arbitral award.
This section provides practical tools as well as answers to frequently asked questions about these dispute resolution processes.
Would You Like to Initiate Mediation or Arbitration?
You can complete the mediation or arbitration request form to briefly outline the parties involved, the nature of the dispute and the main issues in the case.
The information provided will allow for an initial review, including verification that there is no conflict of interest and that the mediator or arbitrator is available. The next steps can then be determined with the parties.
Since mediation is a consensual process, all parties must agree to participate. Before a mandate can be accepted, it is therefore necessary to determine whether the other party agrees to undertake the process.
In arbitration matters, it is important to first determine whether a contractual clause or other agreement already requires the parties to submit their dispute to arbitration. In the absence of such an agreement, their consent must be obtained before the process begins.
Initiate Mediation or Arbitration
How Do You Invite the Other Party to Participate in Mediation?
An invitation to mediation should be simple, respectful and focused on finding a solution. It may be sent directly by a party or through their lawyer.
The invitation should generally:
- briefly describe the nature of the dispute, without setting out the entire argument;
- explain how mediation could be helpful;
- specify that the process is voluntary and confidential;
- propose the name of a mediator;
- allow a reasonable amount of time for a response;
- avoid accusations, threats and definitive positions.
Sample Mediation Invitation
Subject: Proposal to Participate in Mediation
Hello,
In an effort to resolve the dispute between us in an effective and constructive manner, I would like to propose that we participate in mediation.
This process would allow us to discuss the main issues with the assistance of a neutral and impartial third party and explore various settlement options. If no agreement is reached, each party retains their rights and remedies.
I suggest that we consider appointing Me. Sophie-Anne Décarie, an accredited mediator. You can consult her curriculum vitae and professional profile on her website at: www.decarieinc.ca.
Subject to a conflict-of-interest check, the opening of the file and acceptance of the mandate, Me. Décarie’s fees are generally $475 per hour. An initial deposit of $2,500 per party is required. Full financial and administrative terms will be confirmed before the process begins.
If you are interested in pursuing this process, I invite you to provide your response within ten days of receiving this letter.
Sincerely,
[Name]
[Contact Information]
How to Send a Notice of Arbitration or a Proposal to Arbitrate to Another Party
Before sending a notice of arbitration, it is important to determine whether the contract contains an arbitration clause.
When such a clause exists, a formal Notice of Arbitration should be sent to the other party. The notice should expressly refer to the arbitration clause and comply with the requirements set out in it, including those regarding its content, method of delivery, applicable time limits and the process for appointing the arbitrator.
The notice should briefly outline the nature of the dispute, identify the issues to be determined and, where permitted by the arbitration agreement, propose an arbitrator.
In the absence of an arbitration clause, it is preferable to send a proposal to submit the dispute to arbitration. The parties will then need to enter into a written arbitration agreement specifying the issues submitted to the arbitrator and the main terms of the process.
Sample Arbitration Proposal
Subject: Proposal to Submit Our Dispute to Arbitration
Hello,
In order to obtain a decision regarding the dispute between us without commencing or continuing court proceedings, I propose that we submit the issues in dispute to arbitration.
Arbitration would allow the matter to be entrusted to a neutral and impartial person who would hear the parties, review the evidence and render a binding decision, subject to the limited remedies provided by law.
I propose that the parties consider appointing Me. Sophie-Anne Décarie as arbitrator. You can consult her curriculum vitae and professional profile on her website at: www.decarieinc.ca.
Subject to a conflict-of-interest check, the opening of the file and acceptance of the mandate, Me. Décarie’s fees are set at $500 per hour. An initial deposit of $3,000 per party is required. Full financial terms will be specified in the arbitration agreement or engagement letter.
If you agree in principle to arbitration, a written arbitration agreement will need to specify, among other things, the issues submitted to the arbitrator, the scope of the arbitrator’s mandate and the main terms of the process.
I invite you to provide your response within ten days of receiving this letter.
Sincerely,
[Name]
[Contact Information]
The sample invitations are provided for informational purposes only. They must be adapted to the contract, the specific circumstances of the matter and the applicable legal rules. They do not constitute legal advice.
Submitting a form does not constitute acceptance of the mandate. Until the absence of any conflict of interest has been confirmed and the mandate has been formally accepted, no confidential information or sensitive documents should be provided.
Frequently Asked Questions About Mediation and Arbitration in Quebec
Understanding Mediation and Arbitration
What is mediation?
Mediation is a dispute resolution process in which a neutral third party helps the parties communicate, clarify the issues and find their own solution.
What is arbitration?
Arbitration is a private process in which an arbitrator hears the parties, reviews the evidence and renders a decision known as an arbitral award.
What is the difference between mediation and arbitration?
In mediation, the parties decide on the solution. In arbitration, the arbitrator decides the dispute.
How do you choose between mediation and arbitration?
Mediation is appropriate for parties who wish to negotiate a solution. Arbitration is appropriate when a decision is required to bring the dispute to an end.
What types of disputes can be resolved through mediation or arbitration?
These processes may be appropriate for commercial, contractual, real estate and construction disputes, latent defects, as well as disputes between shareholders, business partners or neighbours.
When should mediation be considered?
As soon as a disagreement risks escalating. Early intervention can reduce costs, clarify the issues and preserve relationships.
What is med-arb?
Med-arb combines mediation and arbitration. The parties first attempt to negotiate a settlement, and any unresolved issues are then submitted to arbitration in accordance with the agreed terms.
Frequently Asked Questions About Mediation
What is the role of the mediator?
The mediator facilitates discussions, clarifies the issues and helps the parties explore solutions. The mediator does not make decisions on their behalf.
Is mediation voluntary?
As a general rule, the parties must consent to mediation. Even when participation is required by a particular rule, no one can be forced to reach an agreement.
Is mediation confidential?
Yes. Discussions held as part of mediation are confidential, subject to exceptions provided by law and any agreement entered into by the participants.
Can mediation be used when a lawsuit is already underway?
Yes. Mediation can take place before legal proceedings are initiated or while proceedings are ongoing.
How should you prepare for mediation?
You should identify your priorities, assess your risks, gather important documents and consider several possible solutions.
What documents should be provided for mediation?
Contracts, invoices, expert reports, photographs, written communications and other documents relevant to understanding the dispute may be requested.
How long does mediation take?
The duration depends on the complexity of the matter, the number of participants and their level of preparation. Some disputes can be resolved in a single session.
How much does mediation cost?
The cost depends on the time required, the complexity of the matter and the preparation involved.
Who pays the mediation fees?
The fees are generally shared between the parties, unless they agree to a different allocation.
What happens if mediation does not result in an agreement?
The parties may continue negotiating, choose another dispute resolution method or continue with court proceedings.
Is a settlement reached through mediation binding?
A final, clear and signed agreement may be binding on the parties. When it constitutes a transaction, court approval may be required to allow for forced enforcement.
Can mediation preserve a business or neighbour relationship?
Yes. Mediation allows the parties’ interests, needs and future relationship to be taken into account, rather than focusing solely on their legal positions.
Frequently Asked Questions About Arbitration
Is arbitration voluntary or mandatory?
The initial agreement to arbitrate is generally based on an arbitration agreement. However, a party may be required to proceed by arbitration when a valid arbitration clause is already binding on the parties or when legislation provides for it.
Is an arbitration clause necessary?
A written arbitration agreement is required. It may be included in a contract or entered into after the dispute has arisen.
How is the arbitrator chosen?
The parties normally choose the arbitrator by mutual agreement. If they cannot agree, the appointment may be made according to the mechanism provided for in the contract, by a designated third party or, if necessary, by the court.
Is arbitration confidential?
Arbitration is a private process. The scope of confidentiality should nevertheless be specified in the arbitration agreement or arbitration protocol.
How does arbitration work?
The arbitrator establishes the procedure with the parties, receives the documents and evidence, hears the necessary submissions and then renders an arbitral award.
How long does arbitration take?
The duration varies depending on the number of issues to be determined, the volume of evidence, the number of witnesses and the procedure selected.
How much does arbitration cost?
The cost depends on the complexity of the matter, preparation time, the length of the hearing and the work required to prepare the award.
Who pays the arbitration fees?
Unless otherwise agreed or determined by the arbitrator, the parties are equally responsible for the arbitrator’s fees and expenses incurred.
Is an arbitral award binding?
Yes. An arbitral award is binding on the parties once it has been rendered.
Does an arbitral award need to be homologated?
The award is binding on the parties without homologation. However, homologation may be sought to give it the same enforceability as a court judgment.
Can an arbitral award be challenged?
An arbitral award generally cannot be appealed on its merits. An application to set aside the award may nevertheless be brought on the limited grounds provided by law.
Legal Representation and Support
Do you need to be represented by a lawyer in mediation or arbitration?
Not necessarily. Legal advice can nevertheless be helpful in understanding your rights, assessing risks and determining the consequences of a settlement or arbitral award.
Can mediation or arbitration take place remotely?
Yes. The process may be conducted by videoconference when the parties and Me. Décarie agree that this format is appropriate.
Can I be represented by Me. Sophie-Anne Décarie in a negotiation, mediation or arbitration?
Yes. To obtain legal advice and be represented in a negotiation, mediation or arbitration, you can request that a file be opened with Décarie Stephenson Avocats. Me. Décarie then acts as your lawyer and advocates for your interests.
This role is distinct from her role as a mediator, arbitrator or facilitator, in which she acts as a neutral and impartial third party.
These answers provide general information and do not constitute legal advice. They must be adapted to the contract, the facts, the specific circumstances of the matter and the applicable legal rules.