Private ADR Processes and the Proposed Code of Civil Procedure

1. Private ADR Processes and the Proposed Code of Civil Procedure • Professor Frédéric Bachand • Faculty of Law, McGill University • frederic.bachand@mcgill.ca

2. A philosophical paradigm shift • Mediation: a solid—though incomplete—framework • Arbitration: a misguided and ill-informed effort

3. I. A philosophical paradigm shift • The Dark Ages of ADR • National Gypsum, [1964] S.C.R. 144 • From hostility to tolerance • Zodiak, [1983] 1 S.C.R. 529 • 1986 reform of Quebec arbitration law • From tolerance to promotion • Laurentienne-Vie, [2000] R.J.Q. 1708 (C.A.); Desputeaux, [2003] 1 S.C.R. 178; Dell, [2007] 2 S.C.R. 801 • Judicial mediation programs • Lawyers’ evolving ethical duties

4. I. A philosophical paradigm shift • Public adjudication relegated to a subsidiary role • Article 1(1): « Parties must consider the private modes of prevention and resolution [direct negotiation, mediation, arbitration] before referring their dispute to the courts. »

5. II. The proposed mediation framework • The global trend to regulate private mediation • UNCITRAL Model Law on Int’l Commercial Conciliation (2002); U.S. Uniform Mediation Act (2001, 2003); European Directive on Civil/Commercial Mediation (2008) • What’s the point in regulating mediation? • ***Confidentiality/privilege • ***Quality/integrity of mediation • Effect of undertakings to mediate (i.e. mediation clauses) • Effect of mediated settlements • Prescription • Little need to regulate mediation procedure

6. II. The proposed mediation framework • Highlights of the proposed framework • Robust impartiality/disclosure standards (Articles 3, 610(3)) • Good faith obligations clearly affirmed (Article 2(1)) • Confidentiality/privilege (Articles 4, 611(1)) • An interesting take on the professionalization debate (Article 611(2)) • Mediation’s darker side acknowledged and taken fairly seriously (Articles 2(1), 616, 618, 619(2)) • Mediator’s immunity (Article 608)

7. II. The proposed mediation framework • What’s not (and arguably should be) in the proposed framework • Mandatory mediation--at least as a general rule (?) • Costs rules designed to incentivize the parties • Halsey v. Milton Keynes General NHS Trust, [2004] EWCA Civ 576 • Leicester Circuits Ltd. v. Coates Brothers Plc, [2003] EWCA Civ 333

8. III. The proposed arbitration framework • The 1986 provisions • Followed closely UNCITRAL Model Law on Int’l Commercial Arbitration; implemented 1958 New York Convention • Monist regime: applicable to both domestic and int’l arbitration • Though not perfect, by-and-large worked well--especially further to clarifications/support offered by SCC and CA • Arbitration community--who was not consulted--expected nothing more than a few fixes

9. III. The proposed arbitration framework • The trouble with the draft bill • ***A complete (and useless) rewrite/restructuring of the provisions • An unacceptable broadening of the courts’ power to review arbitration award: « [...] the award is contrary to public order or would bring the administration of justice into disrepute » • Unexplainable omissions: e.g. Article 940.3 of current C.C.P. • Absurdities: e.g. Article 631 • Bottom line: arbitration less efficient, Quebec arbitration law moving away from internationally-accepted standards

10. III. The proposed arbitration framework • Several worthy proposals • Confidentiality (Article 4) • Immunity of arbitrators (Article 608) • Default number of arbitrators: from three to one in domestic cases (Articles 625ff.) • Judicial review of arbitrators’ negative jurisdictional rulings (Article 633(2)) • Provisional and conservatory measures (Articles 631(2), 637, 644) • ***But: those changes don’t compensate for fundamental weaknesses

11. III. The proposed arbitration framework • Why it matters • Efficient commercial arbitration fosters economic development • Promotes rule of law, lowers cost of doing business • Quebec’s untapped potential as a world-class int’l arbitration forum • Bilingualism, bijuridism, accessibillity, low cost of living, geo-political neutrality, reputation of excellence in the field... and world-class nightlife and restaurants ;)