There was a time – not all that long ago – when the waiting time before the courts in the Province of Quebec amounted to seven and a half years. This period of time was not calculated from the date of the institution of the proceedings but from issuance of the certificate of readiness. Thus, the overall waiting time for most important cases easily amounted to ten years. Judges of the Superior Court of Quebec, fed up with the image of being shackled with the longest delays in Canada, decided to do something about them.

A major component of the solution was the enactment of a new Rule 15 of the rules of practice of the Superior Court in civil matters. The Rule provides that no case may be placed on the role for trial without a certificate by the Clerk of the Court confirming that the case is ready to proceed. He or she issues a certificate of readiness only after the parties have certified by way of declaration to set that all documents relating to the case, as well as all abstracts of depositions, expert reports and other exhibits, to which they intend to refer have been communicated according to the parties’ obligation to exchange information concerning the key elements of the evidence.

The result was that trials by ambush became matters of the past. Far more cases were settled and, where no settlement was possible, trial time was reduced. Within three years, almost all outstanding cases were heard well within a year of readiness.

You understand that the time periods that I have set out before you have been a source of pride for all Quebec Superior Court judges over the past 15 years. Rightly so. The court’s delays have fallen from the longest in Canada to among the shortest and all cases proceed on fixed dates agreed upon by counsel. The court has licked its delays. It has succeeded in ensuring that all civil cases certified as ready to proceed in fact are heard within 6 to 12 months depending on the expected length of the hearing.

Having worked hard as Chief Justice to reduce delays and expenses associated with litigation, I must confess I am sometimes a little hesitant to praise and recommend the dispute resolution process as an alternative to litigation. I feel somewhat like the old fisherman whose competitor recommended that he pull the plug in the bottom of the boat after a rainstorm.

I might just set back the cause of alternative dispute resolution for years. Once delays are whittled down, who needs an alternative to litigation. The fact of the matter is that dispute resolution and litigation run parallel paths. Most courts today welcome dispute resolution as an effective means to lighten their overburdened workload.

On entend parfois dire :  « la justice est aveugle ». Ou encore :  « la justice est au service du plus fort ». On se plaint de l’encombrement des tribunaux, du coût de la justice et de la lenteur de la procédure. Si d’aucuns sont d’avis qu’ils sont mal servis par le litige et la justice, se peut-il qu’ils en aient eux-mêmes abusé ? Se peut-il que les méthodes alternatives soient devenues aujourd’hui la solution toute désignée au problème ?

L’histoire ne démontre-t-elle pas que le litige est une douce folie qui remonte à fort longtemps et qui se manifeste sous différentes formes. En Mésopotamie, la justice était confiée à des juges du temple, des juges royaux professionnels, des gouverneurs, des maires et des assemblées de notables. On retrouvait chez les Hébreux des patriarches, des lévites, des juges royaux de même qu’un conseil d’anciens. On a eu recours à l’arbitrage et au procès public chez les grecs antiques, et à Rome la justice se faisait devant les pontifes, les consuls, puis les prêteurs et enfin plus tard devant des juges.

Bien que le degré de contrôle sur la procédure ait varié et que la juridiction du juge ait émané dans des degrés variés du domaine divin, il reste un dénominateur commun à cette douce folie du litige. À travers l’histoire, le recours à l’autorité publique pour résoudre les différends demeure la norme. Il est en effet naturel d’imposer le règlement des désaccords. La contrainte étatique a toujours servi de base au maintien de l’ordre et de la paix.

Mais cet engouement millénaire pour le litige reste-t-il encore valable aujourd’hui ? Certainement pas dans tous les cas. Même l’appareil étatique commence à le reconnaître : le Texas a déjà promulgué une loi encadrant les solutions de rechange pour le règlement des conflits. En pratique, il a été démontré et au Texas et en Californie que le litige est désavantageux pour toutes les parties impliquées dans un projet commun ou dans une relation à long terme. Au Québec, le familial est d’abord assujetti à la médiation. Il en est de même en Ontario, mais au civil.

Until some 50 years ago, members of the Quebec Court of Appeal were divided as to whether clauses referring disputes to arbitration were contrary to public order or not. After all, judges were specifically appointed to deal with such issues. How then could parties to a dispute bypass institutions created by the government ? Jurisprudence in the matter here changed dramatically. To the point that just a few years ago, the Quebec Government gave its official approval to continued implication of the Superior Court in an ADR scheme, titled "Solutions de rechange pour le règlement des litiges" or SoRRèL, introduced as a pilot project to favour out-of-court settlement of long duration cases. Over 90% of cases voluntarily referred to Quebec Bar appointed SoRRèL mediators, generally Montreal lawyers, have been settled over the years. The success of the program was such that Superior Court judges, by way of settlement conferences, have since embarked on mediations of their own with remarkable success.

After all, courts are really courts of last resort where all aspects of a case are brought out into the public spotlight, emotions run high and relationships, which have turned combative, stand little chance of survival.

Like it or not, litigation is a drain on the resources of even the wealthiest or the largest businesses. It is expensive and takes so many personal hours away from the pursuit of corporate goals that businesses can be hamstrung.

What are the alternatives to formal litigation ? I put the question while fully aware of the considerable experience shared by members of the Association of Maritime Arbitrators of Canada in this connection.

There are many ADR related processes. The two that stand out, of course, are mediation and arbitration.

The mediation process, as you know, consists of a session agreed to by the parties for the purpose of settling a dispute with the help a neutral third party called a mediator. In commercial mediation, there is usually an initial joint session that runs from an hour to a day. Here the parties orally inform the mediator of the nature of the dispute.

Unlike arbitration or litigation, there is no set formula for conducting mediations. The dynamics of mediation will vary according to numerous factors, including the mediator’s approach, the nature of the dispute, the number of parties involved and whether the parties are represented by counsel.

Mediation sessions consist of meetings with the parties and their counsel as well as informal caucusing being private meetings between the mediator and either party. In the course of such caucusing, a party may impart to the mediator confidential information which it preferred not to disclose at a joint session.

It is usually at such a caucus that the mediator will indicate what he or she sees as that party’s hurdles, weaknesses and problems.

Though absent initially, trust builds gradually as some agreements are reached and the parties realize their concerns are addressed.

Caucusing will generally continue until an acceptable option has been developed. The mediator works with both sides, and sometimes with the experts and counsel, often keeping people civil to each other just by being there. The mediator’s role is to help each party to see the other party’s point of view and helps to develop options for resolution, as the parties come to a new perspective of their dispute.

Representatives of all parties participating in a mediation must have authority to commit their principals. Thus the parties, with the assistance of a mediator, settle their differences without having to heed a decision imposed upon them by a third party. Accepting an equally acceptable or unacceptable solution, parties usually are in a position to maintain their business relationship for years to come.

A relatively new aspect of mediation is where the parties, who are in agreement as to the facts of the dispute, consent in writing to first entrusting the mediator with conducting an Early Neutral Evaluation along the lines of the concept developed initially in the Northern District of California.

Thus the parties – face to face – and their counsel present the factual and legal bases of their case to the mediator and, indeed, to one another.

The mediator, acting more as an evaluator, then identifies the primary issues in dispute and submits his or her evaluation of the parties’ respective positions. The evaluation, of course, merely constitutes an informed and independent appreciation. It is non binding, confidential and non appealable.

It is only after the mediator’s evaluation is delivered that the true process of mediation, after a short period of time, ranging from a few hours to one or two days, properly gets under way.

Needless to say, the early neutral evaluation process, conducted by and before the mediator, has a telling effect on the strength of the respective positions advanced by the parties and favours an early and thoroughly informed settlement of the matters in dispute.

Mediation, in whatever form, is less costly than litigation and less time consuming. It is recommended where the issues in dispute are reasonable, where at least one of the parties requires that the discussions remain confidential, where the degree of animosity between the parties is not a significant element, where the parties wish to pursue their relationship despite their differences, or where the parties wish to find a creative solution to the conflict.

On the other hand, where the number of parties or the complexity of the questions are such that direct negotiations between the parties are difficult or even impossible or where the conflict is the result of an error in judgment, of an unrealistic evaluation of the facts, of a differing interpretation of the facts, acts or contracts, of an absence of or a breakdown in communication, of a situation of negligence, as opposed to a fraud or an intentional falsehood, or a misunderstanding of the amounts involved or where at least one of the parties requires a quick and confidential solution to the problem, and where the parties are not prepared to submit to mediation, the parties will look to a form of arbitration. Thus, where parties seek to avoid inconveniences related to judicial proceedings but wish to have a third party resolve issues which are at the heart of the dispute or difference, arbitration before an experienced arbitrator is recommended. Rather than waiting months and even years, the parties may rapidly obtain a hearing and a decision before one or more arbitrators.

The arbitrator alone or with others will hear the parties in camera, review the evidence presented and render an executory judgment called an arbitration award to which the parties are bound in the same manner as a court judgment. If the losing party does not comply with the decision, the winning party may apply to the court for homologation of the arbitration award. In so doing, however, the arbitration referral may lose some of its confidential characteristics.

An arbitration hearing, of course, is much more relaxed than a court hearing and whereas rules of evidence are generally respected, the arbitrator will readily by-pass certain rules, the effects of which would delay unnecessarily the hearing and, ultimately, the award.

In Canada, each province has adopted its own legislation with respect to arbitrations, as well as rules applicable thereto. Thus, where parties agree to a place of arbitration, unless the contrary is indicated, the laws governing arbitration in such province will apply. Should the parties look to the courts in respect of a matter relating to the conduct of an arbitration, the application will be brought before the courts of the province in which the arbitration has taken place.

Arbitration of course is considered as an alternative to litigation. The aim is to avoid considerable burden of time and expense associated with conducting proceedings as contemplated by more formalistic court rules and the parties must therefore decide whether they are willing to sacrifice some of the protections afforded by such rules.

The parties to an arbitration must keep in mind the kinds of disputes which may arise. By way of examples, how do you commence the arbitration ? How are arbitrators appointed and how many are required ? How will they be replaced, if no longer able to act ? Will pleadings be necessary to the arbitration ? Will discovery of documents or examinations for discovery apply ? Will oral hearings or factums be required ? And lastly, should a time limit be set for the arbitrator or arbitrators to render their award ?

Another decision to be made is whether arbitration should be administered by an arbitral institution designed to assist the parties in selecting arbitrators and/or provide full administrative services. In important arbitrations, such institutions relieve the arbitrators of much of their administrative burdens with consequent savings in arbitrators’ fees. An important characteristic of arbitration is that the parties are free to chose the arbitrator or arbitrators. In some instances, it is important that they know the business in respect of which the arbitrator has been retained, but remember that the arbitrator’s principal role is to resolve disputes according to the law and based on the evidence submitted. No arbitrator should decide a case on the basis of his or her own opinions, experience or expertise.

The arbitral process is understood to be private and affords greater protection of confidential information and trade secrets. But in order to protect confidential information, the parties generally must enter into a confidentiality agreement.

I should point out here that, far too often, little attention is paid to the drafting of dispute resolution provisions in commercial agreements or in the appointment of one or more arbitrators once a dispute has risen. The use of boiler plate language can be counter-productive. The parties to a prospective arbitration must spend the requisite time to define the scope of the dispute. The jurisdiction of the arbitrators must be established. I personally advocate, in order to avoid needless duplication, the use of more comprehensive language. Unless there is very good reason for limiting the scope of disputes that are to be arbitrated, the parties should at least address the question as to whether one or three arbitrators should be appointed. What are their qualifications, if any. Legal and arbitral experience must be given priority over commercial, technical or scientific expertise. What rules of arbitration should apply ? What law will govern the substantive rights of the parties and the interpretation of the agreement ?

I trust this overview will contribute to your further appreciation of the respective benefits of litigation, mediation and arbitration as well as the hurdles to be kept in mind in resorting or planning to resort to an alternative form of dispute resolution. I would be glad to discuss with you such questions as you may have in mind in this respect.

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