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

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

3. A. The Dark Ages of ADR National Gypsum, [1964] S.C.R. 144 B. From hostility to tolerance Zodiak, [1983] 1 S.C.R. 529 1986 reform of Quebec arbitration law C. 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 I. A philosophical paradigm shift

4. D. 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. » I. A philosophical paradigm shift

5. A. 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) B. 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 II. The proposed mediation framework

6. C. 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) II. The proposed mediation framework

7. D. 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 II. The proposed mediation framework

8. A. 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 III. The proposed arbitration framework

9. B. 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 III. The proposed arbitration framework

10. C. 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 III. The proposed arbitration framework

11. D. 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 ;) III. The proposed arbitration framework