Let's settle amicably

Without a doubt, prevention is the least stressful and typically least expensive way to defuse or avoid a dispute. Seeking legal advice prior to taking action, signing a document, or making an informed decision is a straightforward approach that gives you the highest degree of involvement in the solution.

The lawyers consulted for preventive purposes shall provide guidance on the applicable laws and regulations, strategic advice, and support to identify the most effective approach to avoid or de-escalate conflicts.

Prevention is relevant in all legal matters, including incorporating a company, drafting an agreement, getting married, entering a civil union, buying or selling a house, etc.

Those who choose prevention are mindful of addressing potential conflicts early on or equipping themselves with protections against a dispute that may arise in the future.

Seeking legal advice at the appropriate time can help you avoid a lot of issues and save valuable time and money.

Negotiation is central to all dispute prevention and resolution processes, including mediation and collaborative law. This process focuses on reaching an agreement with the other party through dialogue and acceptance of certain compromises.

Negotiation allows to restore or, sometimes, initiate a dialogue between parties having to deal with unresolved disputes. Engaging a negotiation process before pursuing legal action can lead to substantial savings in both time and financial resources.

In many situations, negotiation results in an out-of-court settlement, with both parties confirming their agreement in writing. In such cases, it is crucial to have all details fully outlined in a written agreement signed by each party.

A pre-court protocol is designed to help parties work together before initiating legal action. It is created by the parties and facilitates the sharing of information and documents within a collaborative structure.

With its high level of flexibility, the pre-court protocol can be customized to fit the preferences of the parties, without constraints. This process facilitates both the prevention and settlement of disputes, with the parties’ lawyers playing a critical role. This protocol can also be completed without third-party involvement, with each party bearing its own costs.

Specifically, the pre-court protocol allows for less formal, more targeted actions that lay the foundation for legal proceedings should the matter eventually escalate to a court of justice.

By agreeing to a pre-court protocol, parties set the stage for cooperation before legal proceedings are initiated before the court. By defining the scope of the debate with the goal of reaching a settlement, this process is very similar to the content of the protocol used if the case is referred to the court. 

A clearly defined, three-phase approach is proposed:

1. Two-way information sharing between the parties;
2. Mutual definition of the legal disputes to be settled by the parties;
3. Joint meeting to explore possible solutions.

Should the parties decide to take legal action, their court application will be given precedence, provided it includes evidence of an agreement to a pre-court protocol, except in matters related to family law.

The goal of mediation is to resolve conflicts by seeking solutions, rather than identifying who is right or wrong.

Through this process, the parties accept the support of a neutral third party, known as the mediator, to guide them towards resolving their legal dispute. Mediation is an option regardless of whether legal proceedings have been initiated or not.

The mediator’s role is to facilitate dialogue and propose solutions so that the parties can reach an agreement. The mediation process can be completed in one or more meetings, with your lawyer representing you if you wish so, and you can end the process at any moment.

The mediator does not have the authority to make decisions. The parties remain in control of the process. Consequently, they can reach an agreement based on equitable considerations rather than being bound solely by the requirements of the law. The key is to be aware of your rights and the circumstances, so you can freely retain a solution that satisfies all parties.

If mediation reaches a successful outcome, you need to document the agreement in writing. While often thought to be reserved for child custody or small claims issues, mediation is, in fact, a process used to settle most types of conflicts.

The Ministère de la Justice offers, free of charge, a range of mediation sessions for family matters and small claims.

In any non-family legal matters initiated by the parties, legal actions will be given priority if supported by a declaration from a certified mediator or an organization offering mediation in civil matters, confirming that the parties have engaged in a dispute prevention and resolution process.

In small claims disputes of $5,000 or less, mediation is a mandatory step for all qualifying matters. In the upcoming months, small claims mandatory mediation will gradually be applied across the province of Québec. Once the claim is submitted and contested, the courthouse will refer you to a mediator. No registration is required on your part.

In a collaborative law process, the parties and their lawyers must contractually commit in advance to find an acceptable solution outside of court, and the lawyers will have to withdraw from the case if a settlement is not reached. Both parties must also disclose all necessary information to settle the conflict and sign a confidentiality clause, preventing any statements made during negotiations from being used in the future. In a collaborative law process, negotiation sessions can be held either with both parties and their lawyers, or exclusively among the lawyers.

The parties are free to select the lawyer of their choice. If discussion for settlement is unsuccessful, the lawyers commit in writing to withdraw from the case and abstain from pursuing legal action.

These discussions shall be driven by a spirit of collaboration, not litigation. From that point on, the parties convene and handle the case based on their specific needs and interests. The process shall continue until a comprehensive and mutually satisfying agreement is reached.

Those selecting this process demonstrate a willingness to engage in dialogue and reach an agreement, while relying on their lawyers to secure a settlement that respects their rights.

The resolution process by mediation-arbitration merges two approaches designed to address the specific needs of the parties involved.

This approach allows for arbitration should mediation efforts prove unsuccessful. The process starts with mediation. If the parties fail to come to an agreement, the mediator shall step in as an arbitrator and initiate an arbitration process to reach a decision.

Working with a lawyer acting as both mediator and arbitrator can lead to faster agreements between the parties.

Arbitration is a form of private trial in which the arbitrator is acting as the judge.

While more flexible and less formal than a trial, the arbitration process nevertheless complies with the core procedures and rules of law applicable before the courts. As with trials, the parties are entitled to be represented by a lawyer.

The arbitrator listens to the arguments of the conflicting parties before deciding on a solution to end their disagreement.

Most civil, business, and labour law disputes can be resolved through arbitration. This approach delivers timely and focused results at a fraction of the cost of litigation in a courtroom. 

As in a trial, each party presents its case and may call witnesses and experts when needed. After reviewing the arguments, the arbitrator renders a written decision and relays it to the parties. This decision is final and without appeal. Should the unsuccessful party disregard the decision, the successful party must obtain a court order to make it enforceable, thereby forcing all parties to execute it.

This process is a practical way to resolve small claims disputes. Small claims arbitration will gradually be applied across the province of Québec in the upcoming months. No need to search for an arbitrator to settle a small claim. The Ministère de la Justice will assign one to you and the arbitration services will be free of charge.

Conciliation is an informal and confidential process where a neutral third party (the conciliator) helps you reach a satisfying agreement with the other party. The conciliator’s role consists in encouraging constructive dialogue between the parties.

Conciliators often work within the operating structure of institutions such as professional associations or administrative tribunals. The regulations of the institution in question shall determine who may be appointed as the conciliator, as well as the applicable criteria. These regulations also outline the steps of the conciliation process, which may vary depending on the institution or organization.

The conciliation services offered by courts, administrative tribunals, or government agencies are free of charge.

A settlement conference may be initiated after the filing of a legal claim, provided both parties agree to it.

Chaired by a judge, the settlement conference helps the parties engage in dialogue, negotiate, define their interests, evaluate their respective positions, and work towards a mutually satisfactory outcome.

The judge chairing the conference has no decision-making authority. The judge’s role is to ensure the smooth running of the meeting and help the parties reach a satisfactory agreement. Settlement conferences offer an opportunity to resolve disputes with savings on both the time and the expense of a full trial.

Your presence at the settlement conference is required, and you have the option to be assisted by a lawyer or any other person that the judge and the parties consider useful.

Should the conference result in a favourable outcome, the parties will draft and sign an agreement that both sides must adhere to, thereby ending the legal proceedings.

Should the dispute remain unresolved after the conference, all information shared remains confidential and cannot be disclosed by the parties or their lawyers. Moreover, the judge who chaired the conference is not allowed to act as the presiding judge in your trial.