In the event of a small claims lawsuit, the parties must be open to using mediation or arbitration to settle their dispute. In some cases, mediation may even be mandatory. Mediation can help resolve disputes quickly and at no additional cost.
An Amicable Solution
Mediation is a type of negotiation where an impartial person, called the mediator, helps the parties find a solution to the dispute on their own.
A mediator helps you reopen dialogue with the other party. Both parties respectfully express their points of view. Everything is confidential. The mediator assists in negotiating a solution everyone can agree on.
Mediation avoids long delays. Also, you won’t have to experience the stress and emotion of a trial and its unpredictable outcome.
Always Free and Accessible
You can take part in one or more mediation sessions free of charge as soon as you file a claim in small claims court. Please note that in some cases, mediation may even be mandatory.
You must say on the application form whether you are open to mediation. The other party can then agree to try mediation to find a solution.
It’s never too late to settle your dispute by mediation. Even if you refused mediation when you filed the claim, you can always change your mind. You simply need to ask the clerk at the court office where you filed your claim.
You can go to mediation at any time, even on the day of the trial!
If you haven’t yet benefited from a free mediation session, you can use this last chance to try to solve the problem.
If you are unable to resolve your dispute within the hours provided free of charge, you may continue the sessions with the mediator, at your own expense. In this case, the mediator’s fee is $135 per hour. However, the mediator is responsible for all costs incurred (e.g. travel expenses). The mediator cannot demand reimbursement from you.
Mediation is mandatory in certain cases
Mediation is mandatory for claims before the Small Claims Court that meet the following conditions:
- Have a maximum value of $5,000 (excluding interest).
- Are filed in a judicial district where mandatory mediation is in place. Mandatory mediation is in place in several judicial districts, including Laval, Longueuil and Quebec City.
This means that, if you are a party to such an action, you will have to participate in mediation before you can be heard by the court. A mediation session must take place within 45 days of the date on which the mediator was given the mandate.
However, certain exceptions apply. For example:
- For victims of domestic or sexual violence, if they have submitted an attestation confirming that they have presented themselves to a victim assistance service recognized by the Minister of Justice.
- For parties who have requested that judgment be rendered based on the paper filed, without a hearing.
You can also ask to be exempted from the mandatory mediation for a serious reason, for example, if a court order prevents you from being in the presence of the other party. In cases where an exemption is granted, the case will be submitted to the court or to arbitration, depending on the situation. As with voluntary mediation, you are entitled to a maximum of three free hours for your case.
If you do not cooperate with the mediator to set a date for the mediation session (within the 45-day time limit), or if you are absent from a mediation session without a serious reason, you will be in default of participating in the mediation. Your case may then go toarbitration. If you fail to participate in mediation, the court or arbitrator may impose one or more sanctions, including the payment of damages to the other party.
An Easy and Confidential Process
When a file is submitted to mediation, the Small Claims Court’s mediation and arbitration service will assign a mediator to your case.
However, it is important to note that the choice of a mediator is not yours. The mediator is a lawyer, retired lawyer, notary or chartered professional accountant specially trained in mediation and accredited by their professional order.
The mediator consults you and the other party to set the date and time of the mediation session. The mediator chooses the place. The mediator might decide to hold the mediation using distance technology with your permission.
The mediation session lasts about an hour and is rather informal. During the session, you can state your position and listen to the other party’s position. The mediator will help you try to solve your dispute.
If you or the other party are absent from the mediation session, the mediator must cancel it, and neither you nor the other party can request a new mediation session in Small Claims Court. You may, however, wish to retain the services of a private mediator.
Everything that is said, and all the documents that are exchanged, stay confidential. You can express yourself freely.
Mediation Can Avoid a Trial
Mediation often solves disputes. If mediation is successful, you must submit a copy of the agreement to the courthouse clerk. If you want the agreement to remain confidential, you must submit a notice that says you settled the dispute through mediation.
You could ask for your agreement to be approved by the judge or a special clerk. If so, your agreement is the same as a judgment. This means that if one of the parties doesn’t respect the agreement, the other party can force them to respect it.
If you are unable to reach an agreement despite the mediation session, depending on the situation, your case may be submitted to arbitration or a judge. However, you may withdraw from the arbitration if you prefer to be heard by a judge. Once you receive a notice of arbitration, you will have 30 days to withdraw.
For more information on the arbitration process, consult the Quebec government website, on the Small Claims Arbitration page.