Negotiation consists of finding a common ground through discussion and compromise; it is the foundation of resolving disputes. In fact, all methods of dispute resolution are based on negotiation. Negotiation can take place within the scope of a legal recourse, but not necessarily. Negotiation can happen directly between the people involved in the dispute or between their lawyers. Finally, negotiation can help prevent disputes.

Many practitioners say that just sitting down at a table with the goal of resolving a dispute is sometimes enough to find a solution that satisfies everyone. Studies also show that a solution that was negotiated, and therefore freely accepted, lasts longer and is more likely to be respected by the people involved than a decision that was imposed on the people.

For example, Claire and Denis are neighbours. They agree that the fence separating their land needs to be redone. However, they disagree about what the new fence should look like and about how much each of them should have to pay. They decide to sit down together to discuss their concerns, with the goal of finding a compromise that would satisfy both of them.

Collaborative law is a form of negotiation which the parties (people involved in the dispute) and their lawyers decide to follow at the beginning of the dispute resolution process. Under collaborative law, the parties and their lawyers undertake by contract to find a satisfactory solution to their dispute without going to court; if they don’t find a solution, the lawyers must withdraw from the file.

The parties must disclose all of the information needed to resolve the dispute, and they must sign a confidentiality agreement so that what was said during the negotiation cannot be used in court if the process fails. Under collaborative law, the negotiation meetings can take place between the people involved in the presence of their lawyers, but also between the lawyers only.

Suppose that Goran buys Simran’s house. A few months after the sale, he discovers that the septic tank is defective and he contacts Simran for compensation. Goran and Simran both contact a lawyer. Each lawyer has been trained in collaborative law, and each lawyer mentions to his client that it is possible to resolve this dispute without going to court. Goran and Simran are both open to this idea. The lawyers and their clients sign a contract in which they commit to resolving the dispute using a collaborative method.

Mediation is a form of negotiation in which a mediator, who is a neutral person, facilitates the dialogue. The mediator plays an active role and can propose solutions to the parties. Mediation can be used in all areas of the law, whether or not a lawsuit has been filed. The possibility of undergoing mediation is even sometimes set out in the law, particularly for family law cases and small claims court cases.

Apart from certain notable exceptions, there are no general rules about who can act as a mediator. Thus, the parties are free to choose the mediator of their choice.

In the business sector, there is an accreditation process, which requires, in particular, that people complete mediation training. The accreditation allows the mediator to be registered in a list of accredited mediators, which helps potential clients find a mediator. A person can still be a mediator even if she is not accredited.

However, in family matters, only accredited mediators can act as mediators. Lawyers, psychologists, social workers, guidance counsellors, and notaries can be accredited as mediators by the professional order to which they belong. Employees of youth centres can also be accredited as mediators.

In other sectors, particularly in the labour sector, the law sets out the possibility of going through mediation. In such cases, it is the law, and not the parties, that determines how the mediation will be carried out and how the mediator will be nominated.

Finally, it is also possible to state in a contract that any dispute about the contract must be (or could be, depending on the case) submitted to mediation.

Here is an example. Felix and Francesca separate. They agree on shared custody of their children. However, they disagree about the amount of child support that should be given to Francesca for taking care of the children, given that her salary is much lower than Felix’s salary. Because they have children, Felix and Francesca must participate in an information session about mediation. After that, they can decide whether or not they want to go through mediation. If they choose to go to mediation, a certain number of mediation sessions will be paid for by the government. The mediator will help them come to an agreement about their separation.

To learn more about mediation between ex-spouses or ex-partners with children, read the infosheet entitled Free family mediation.

Conciliation is a lot like mediation. Some people even consider “mediation” and “conciliation” to mean almost the same thing. However, a conciliator plays a more passive role than a mediator; usually, a conciliator doesn’t propose solutions like a mediator does. Conciliators are content to facilitate the dialogue between the parties.

Conciliators often act within institutions. Therefore, the rules of the institution determine who can be named conciliator and the criteria to be a conciliator.

Thus, during a lawsuit, a judge may act as a conciliator during a special hearing called a “settlement conference”. The parties can ask the judge to hold a settlement conference; the judge can also recommend that the parties participate in a settlement conference. Conciliation is also used within professional orders (lawyers, notaries, architects, etc). The labour relations sector also frequently uses conciliation.

Let’s say that Christopher hired an engineer to plan and supervise major renovations of a building. Once the work has been completed, the engineer sends a bill to Christopher. Christopher notices that the bill is a lot higher than what he and the engineer had agreed to before the work began. So Christopher contacts the Ordre des ingénieurs du Québec (professional order of engineers), who have a conciliation process for disputes relating to bills. The engineer and Christopher meet in the presence of a conciliator to try to find a satisfactory solution about the amount of the bill.

Arbitration consists of choosing a person, the arbitrator, who will decide upon a solution to a dispute based on rules chosen in advance by the people involved. In order for the arbitrator’s decision to be legally valid, the recourse to arbitration must have been set out in a contract or a law.

The arbitrator is often a specialist in the subject-matter of the dispute. His decision is final and generally can’t be contested before a court. Arbitration is particularly effective in the business sector and in the labour relations sector, mainly because of its quickness. It is, however, forbidden in certain other areas, particularly those involving family matters and the status and capacity of persons.

The nomination of an arbitrator happens according to the rules that the parties set out in the contract. Sometimes the law also sets out how arbitrators should be nominated.

For example, Kings of Apple Cider Inc. is a small cider business. It distributes its products in the Baie-des-Chaleurs region in Quebec and in parts of New Brunswick. To better serve its New Brunswick clients, Kings of Apple Cider Inc. hires Poutine Trucking Co. and signs a contract under which Poutine Trucking Co. will transport the products for five years. This contract states that if there is a dispute, the two businesses will have to go through arbitration to resolve the dispute. The contract also states that the rules contained in the Civil Code of Quebec and the Code of Civil Procedure will apply for nominating the arbitrator and for determining his powers.