Gouvernement du Québec - Justice

Mediation

Mediation is a dispute prevention and resolution process.

The parties to a dispute can use mediation to actively seek a solution with help from a neutral person, the mediator.

The mediator helps the parties express their needs and interests, allowing them to achieve a settlement that is satisfactory to all parties.

Mediation can be used even in a situation where legal proceedings are not being considered.




General features

  • Mediation is based on specific rules and processes.
  • An impartial, neutral party (the mediator) is necessarily involved.

  • Mediation may take place at one or more meetings lasting from one to several hours, attended by the parties to the dispute and the mediator.
  • The parties may attend alone, or be accompanied by a legal advisor or another person whose presence is considered useful.

  • Mediation may take place before, during or after legal proceedings.

  • Mediation may take place in a private office or on the premises of a public institution such as a court or community organization.
  • The parties to the dispute are responsible for defining the terms of a settlement that is satisfactory to all parties.
  • The cost of the mediation process is shared between the parties, unless otherwise agreed or ordered.
  • The mediation process is based on confidentiality.



Role of the parties

The parties to the dispute must agree to take part in the mediation process.

As a result, they must

  • undertake to cooperate in seeking a resolution to the dispute;

  • select a mediator jointly with the other party or parties, directly or through an outside body (professional order, specialized organization, court clerk, etc.);

  • share the cost of the mediator's services.

   

Role of the mediator

The mediator directs the mediation process.

As a result, the mediator

  • ensures that negotiations are balanced and fair;
  • reduces the obstacles to communication;
  • facilitates dialogue between the parties;

  • helps the parties reach a voluntary settlement, in full knowledge of the facts;

  • makes no decisions for the parties;
  • remains impartial and neutral;
  • may suggest that the parties consult a specialist, for example to obtain an independent legal opinion;
  • may encourage the parties to obtain an independent legal opinion to finalize the settlement;

  • may terminate the mediation, if necessary.

Top


   

Types of mediation

Family mediation

Family mediation is generally used by couples, with or without children, who are separating.

They can use family mediation, for example, to reach an agreement on support payments, the sharing of property, or child custody.

The Ministère de la Justice offers a family mediation program. Parents with dependent children who are separating can attend mediation sessions free of charge.

Find a mediator:


Small claims mediation

Small claims mediation is designed for people who have filed an application or a defence at the small claims division.

Mediation is offered to help the parties reach an agreement before going to court.

The Ministère offers a small claims mediation service. The first mediation session is provided free of charge.

A pilot project on mandatory small claims mediation has also been established by the Ministère.


Private civil and commercial mediation

Private civil and commercial mediation is available for

  • individuals in a dispute with other individuals;
  • individuals in a dispute with enterprises;
  • enterprises in a dispute with other enterprises.

Mediation may be used in various situations:

Private civil situations:

    • disputes involving a succession;
    • disputes involving a consumer contract;
    • disputes concerning a hidden defect;
    • disputes concerning construction work completed by a contractor;
    • etc.

Private commercial situations:

    • problems with a supplier;
    • disputes between partners or shareholders;
    • questions of intellectual property rights;
    • etc.

Some costs may apply when this type of mediation is used:

  • The mediator's fees are those generally charged by a professional, plus travel costs.
    • Since the mediation process is generally quicker than court proceedings, the number of billable hours should be smaller.

  • Lawyers' fees will be payable only if the parties are represented by a lawyer, at the parties' request, during the mediation process.

  • It is possible that no witnesses' or experts' fees will be payable, depending on the type of mediation selected.

  • The parties will save on court costs, except if they wish to have their agreement homologated by the court.

Find a mediator:


Citizen mediation

Citizen mediation can be used to ensure harmonious relations in a neighbourhood or co-owned building.

It is available to individuals in a dispute with other individuals or with institutions in their community.

It can be used in various contexts:

  • disputes between neighbours: boundary lines, snow removal, animals, noise, etc.;
  • interpersonal disputes (except disputes covered by family mediation);
  • disputes between one or more citizens and private or public authorities or organizations in the community.

Citizen mediation is provided free of charge. Most of Québec's alternative justice organizations have volunteer citizen mediation units.

Find a mediator:



   

Overview of the mediation process

The mediation process has several steps. The steps outlined here may vary slightly in practice, depending on the approach applied.

1 – Pre-mediation

The mediator may contact the parties, individually, to explain the mediation process. This step may take place by telephone.

A mediation agreement, setting out the mediation process and the duties of the mediator, should be drawn up. The mediator may do this at the request of the parties. The agreement must then be signed by the parties before or at the first mediation session.

2 - Mediation

In general, a mediation process* under the direction of a mediator has four main steps.

2.1   Introduction to the mediation process and timeline of events

The parties to the dispute discuss the problem and their own perceptions. They relate the events they have experienced.

2.2   Exploration of interests and needs

The parties to the dispute seek to understand the underlying interests at the source of the problem. They determine the needs that must be met.

2.3   Review of options and negotiation of a solution
The parties to the dispute seek ways to meet their respective needs. They agree on a solution or solutions that would be fair and satisfactory to all parties.

2.4   Conclusion of mediation and settlement
The parties to the dispute undertake to implement the solutions chosen to settle the current problem and prevent any further problems in the future.

* The information on the mediation process presented here is based on the diagram Survol du processus de médiation by Bériault, Marois and Roberge, 2013.

3 - Settlement

The mediator prepares a mediation report or a summary that includes the terms of the settlement, in other words the way or ways in which the parties have agreed to resolve their dispute.

The parties may consider that this document is sufficient. However, it has no legal value if one of the parties fails to comply with the terms of the settlement.

To give the settlement legal force and effect, in other words to make it binding, the parties must apply to the court to have it homologated. The application must include a draft agreement or settlement.

Since this new document is not identical to the mediation report, the services of a lawyer or notary may be needed to draft it.



   
For more information

 

The content of this document is strictly informative and has no legal value.

If you find some of the information difficult to understand, do not hesitate to contact us. Please note, however, that we cannot interpret the information to apply it to a specific situation.

Top




Latest update: January 27, 2016



General informationPolicies, Studies and ReportsAdministrative documents
Publications for saleAccess to informationPolicy on privacyAccessibility