Mediation at the Court of Appeal: Lessons Learned and a View into the Future

Mediation at the Court of Appeal started in 1997, as a pilot project that was applied solely in family law proceedings. It was noted that at the time of installation of this project, many of the justices at the Court of Appeal were against it. Their concerns mostly centred around the changing role of judges in the legal system as mediation involves judges being more withdrawn from the process (they propose solutions but ultimately it is the parties that must agree and find compromise). Despite these concerns, mediation has now expanded to all areas of law.

When parties arrive at the Court of Appeal, they are confronted with new realities. At this stage, the costs associated with ongoing legal procedures have accumulated. Parties are often more ready to close a chapter in their life that has taken years to resolve. Moreover, the appellant is faced with a decision that was unfavourable to them which can be sobering and adjust expectations. All this together can push the parties towards mediation which offers a speedier resolution and a form of compromise. What is essential at this stage is that both parties are able to be heard and accept the result of the process. This can have an important psychological effect for them, especially because neither party has to feel as though they have come out of the justice system as “losers.” This aspect differentiates mediation from trials. It is also worth noting that the reason we have a legal system is so that as a society we can resolve disputes in a peaceful and orderly manner. In this sense, mediation is completely compatible with the role of judges and the legal system.

There are few justices at the Court of Appeal and they already have an extremely packed schedule. In the future, we should consider having more retired justices or professional mediators who are not in themselves justices. In either case, more resources are needed. We could also consider implementing binding dispute resolution (“BDR”) which would give justices more power to make decisions and to make some of the solutions that they propose mandatory. It’s worth noting that this measure would fundamentally change the nature of mediation in terms of its current use in Quebec, but it does exist in other provinces (notably Alberta). Lastly, the government and courts must do more to promote mediation as an option to resolve disputes as it is widely unknown by those who are not intricately familiar with the legal system.

PANEL: Mediation at the Court of Appeal: Lessons Learned and a View into the Future
Chair: The Hon. Nicole Duval Hesler, Chief Justice, Court of Appeal of Québec
Speakers: The Hon. Pierre Michaud, Retired Chief Justice, Court of Appeal of Québec; The Hon. Marie-France Bich, Court of Appeal of Québec; The Hon. Julie Dutil, Court of Appeal of Québec

This report was issued by the Canadian Institute for the Administration of Justice on December 20, 2018, following an International Seminar celebrating the 20th Anniversary of Judicial Mediation. The Honourable Nicole Duval Hesler, Chief Justice of Quebec, was Honorary Chair for the event which was held in Montreal on November 22, 2018.

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