YOU CONSIDER OTHER CONFLICT RESOLUTION PROCESSES?
In fact, according to the Code of Civil Procedure, before going to court, it is mandatory to ‘’consider’’ other means to settle a dispute before taking legal action.
Here are the other conflict resolution processes (Private Dispute Prevention and Resolution Processes).
Opting for one of these alternative methods of conflict resolution may help you reduce the time and cost of the traditional judicial processes while taking advantage of their benefits.
These alternative methods of conflict resolution often put the people involved at the heart of the process and make these people actors who participate concretely in the search for a satisfactory solution.
On the other hand, in some cases, it is the court that will remain the best choice and then our litigators will be there to help you.
THE RIGHT QUESTIONS TO ASK WHEN CHOOSING A METHOD OF CONFLICT RESOLUTION
Do you need to maintain relationships with the person with whom you are in conflict?
For example, in the case of a neighborhood dispute or with a key supplier.
- What would give you the feeling that justice has been done?
The result of a trial is not always satisfactory from this point of view since there will be a winner and a loser. An original solution found in compromise between the parties may provide an apology, a new business opportunity or recognition of wrongs by the other party, which the reading of a judgment does not procure. In addition, would a monetary judgment against the opposing party be enforceable? Is the other party solvent?
- How much are you willing to invest in the judicial process?
The judicial process to go to trial as well as the trial itself can be long and costly. Other ways can be more affordable.
- Do you want to resolve the conflict quickly?
Do you have a particular reason for needing a quick fix? This is often the case with shareholder disputes. Some processes can start without formalities. They can lead to a solution faster than a lawsuit.
- Can a neutral person promote the search for common ground?
When vivid emotions prevent us from dialoguing, but a solution could probably be found if the dialogue was facilitated by a mediator or conciliator, for example, an alternative way of resolving conflict is often appropriate.
Did you know that more than 85% of the disputes that you entrusted to us settle amicably even before the trial is started? Décarie Lawyers & Notaries is proud to offer you all the following alternative conflict resolution processes:
- Civil and commercial mediation, and
- Conciliation, such as a settlement conference.
Even if the lawyers of Décarie Lawyers & Notaries are proud litigators, they always have your best interest at heart. That is why they will ensure that recourse to the courts is used only as a last resort and only when a reasonable settlement can’t be obtained, for example, following a reasoned negotiation attempt or participation in a Settlement Conference.
Negotiation is the private conflict resolution process whereby the parties themselves or their lawyers undertake a process of communication and exchange in order to find a satisfactory solution to a conflict.
This is the most common private conflict resolution process.
The role of the lawyer-negotiator is:
- To analyze the client’s file and identify the best negotiation approach
- To assist the client to evaluate his best alternative to the resolution, including the costs and risks associated with his file
- To make recommendations to the client as to the desirability and the terms of the offers and counter-offers to be presented or accepted
- To suggest creative and original solutions
- To prepare and submit offers or counter-offers of settlement whether in writing or at negotiation meetings
- Write and review settlement agreements to make them enforceable
As part of the negotiation process, the lawyer-negotiator acts in the sole interest of his client. He is not neutral.
The parties and their lawyers are the master of the process, it is not subject to any formality. It is possible to negotiate at any time in the context of a dispute before the appeal is commenced, while the process is initiated, while the trial is ongoing or even after the judgement is rendered.
A party may, at any time, in its sole discretion and without being required to disclose its reasons, withdraw from or terminate the process.
At the end of the negotiation, the lawyers of the parties will have to prepare the appropriate legal documents in order to notice the settlement agreement reached. The lawyers will be able to immediately certify the settlement agreement so that it has the same enforceability of a judgment rendered by a court.
With rare exceptions, each party pays the fees of his own lawyer.
WHY HIRE A LAWYER FROM DÉCARIE LAWYERS & NOTARIES TO NEGOTIATE A CASE?
The litigators at Décarie Lawyers & Notaries really know their files, the real strengths and weaknesses and the real issues of their files and their clients. They really know what it means if there is no resolution and we opt to plead the case to the court. While they are ready for the fight, they are often the best to negotiate advantageous settlements with the opposing party. Because they act on a thorough analysis of the file, they are not vulnerable in the event that the final offer made by the opposing party was unreasonable. Indeed, when the mandate will be given, they will go to plead your case with combativeness and resilience having the conviction that they did everything to settle it to your advantage but that it was not possible to do it.
WHAT IS REASONED NEGOTIATION?
The reasoned negotiation is the negotiation method favored by the lawyer-negotiators of Décarie Lawyers & Notaries. It is a way of negotiating and managing conflictual relationships based on the teachings of Roger Fisher and William Ury and taught at Harvard University and the University of Sherbrooke. It consists in identifying the commonalities between needs and interests of the parties in order to choose together a win-win solution rather than negotiating while staying focused on each other’s position.
The negotiating parties then concentrate on finding common interests and needs in order to find a rational agreement on the basis of objective criteria.
Reasoned negotiation is based on four principles:
- Treat people separately (relational dimensions) from the real issue of the discussions (the problem)
- Focus on the interests and needs at stake and not on the positions (the first claims)
- Collectively explore several creative solutions
- Look for an agreement based on objective and verifiable criteria
This approach has a better success rate than all other negotiation approaches and has allowed the lawyer-negotiators of Décarie Lawyers & Notaries to find several creative litigation solutions for the firm’s clients over the last few years.
What is mediation?
Mediation is a process in which the parties attempt to resolve, with the assistance of a neutral mediator, conflicts related to all aspects of their dispute. It is therefore a private conflict resolution process as opposed to the courts that are public.
The role of the mediator is to help the parties to
- Dialogue in a climate of cooperation and respect
- Clarify their points of view and identify their differences
- Identify their needs and interests
- Work together to develop creative solutions
- Reach a mutually satisfactory agreement
- Establish and enforce a mediation process adapted to the particular situation of the parties so as to maintain a fair balance of discussion between them
The mediator has an obligation to act fairly with respect to the parties and ensures that each of them can express their point of view. The mediator is therefore an impartial and neutral person.
The benefits of mediation
The result is chosen by the parties, the mediator takes no decision for you.
The process is fast – you do not have to go through the meanders of pre-trial proceedings.
Mediation is an economic process since you only pay the fees of a single mediator instead of having to pay the fees of two lawyers for a longer period.
At any time during the mediation process, the parties may be accompanied and obtain independent legal advice on any matter relating to the dispute submitted to mediation with a lawyer or notary of their choice.
The conclusion of an agreement
The mediation ends with the conclusion of an agreement in principle, which can be found in an informal document called Summary of Agreements prepared at the end of the mediation which is neither a legal document nor binding agreement and which is intended for external legal advisers retained to prepare the appropriate legal documents or to any lawyer or notary of Décarie Lawyers & Notaries jointly mandated by the parties.
At the request of the parties, the mediator of Décarie Lawyers & Notaries may appoint a lawyer from the firm to represent both parties in the court for this purpose. This will further minimize the costs of hearing your application.
Conciliation is a private conflict resolution process in which the conciliator plays a more passive role than the mediator.
The role of the conciliator is to help the parties to:
- Dialogue in a climate of cooperation and respect
- Clarify their point of view
- Negotiate an agreement quickly
The conciliator often acts within the framework of the activities of an organization or institution and it is then the rules of that body or institution that provide the criteria for acting as conciliator.
When conciliation mechanisms exist within various governmental or para-governmental bodies, these mechanisms sometimes take other names, such as ‘’mediation’’ or ‘’settlement conference’’, but technically they are conciliations as they are provided by bodies or institutions and governed by rules of their own.
For example, these are the conciliation mechanisms provided by professional orders (lawyers, notaries, architects, etc.), in certain areas such as labour relations (conciliation at the Tribunal administratif du travail or mediation offered by the Commission des normes, de l’équité, de la santé et de la sécurité au travail), the meditation offered by the Small Claims Division at the Court of Québec and the Settlement Conference offered by the Court of Québec and the Superior Court.
At any time during the conciliation process, the parties may be accompanied and obtain independent legal advice on any matter relating to the dispute submitted to conciliation with a lawyer or notary of their choice.
The lawyers of Décarie Lawyers & Notaries will accompany you in order to prepare you for each of these types of conciliations, to advise you throughout the process, to elaborate the offers and to appreciate the counter-offers presented.
At the end of the conciliation, the parties’ attorneys will have to be retained to prepare the appropriate legal documents in order to notice the settlement agreement reached.
The services of institutional conciliators are normally free and the parties must pay the fees of their own lawyers. It is possible for the parties to hire a private conciliator. In this case, the parties must pay the fees.
Conciliation at a Settlement Conference
In the context of a court dispute, it is possible for our lawyers to accompany you to participate in a conciliation at a Settlement Conference chaired by a judge of the Court of Quebec or the Superior Court.
The Settlement Conference is held at the courthouse in a meeting room. It is relatively informal in order to favor an amicable settlement of the dispute. The parties set out their starting position and, together with their lawyers and the conciliation judge, they exchange offers and counter-offers in a productive and efficient manner. The role of the judge is to try to reconcile the positions of the parties and to fuel the discussion but he is not there to give judgement.
In addition, the conference is a voluntary process, which means it can only take place when all parties to a dispute request it. Furthermore, a party may, at any time, in its sole discretion and without being required to disclose its reasons, withdraw from or terminate the process.
When the conference makes it possible to find a solution to the dispute, an agreement is then drafted and signed by the parties and by their lawyers and, most of the time, it is then submitted top the judge who presided over the conference so that he/she ratifies it and gives it enforceable force such as a judgment of a judge of the Court. The success rate of Settlement conferences is very high.