Mediation: an unrecognized remedy

August 10, 2017 - Co-ownership can be a source of disputes. It abounds with elements or subjects that can become irritants and then lead to disputes. The judicial route is sometime the only means of solution, but there is, meanwhile, an alternative disputes mode of settlement: mediation.

It is an often overlooked mechanism, even though the civil procedure reform of 2016 expressly requires the parties to consider mediation as a conflict resolution process. Indeed, Article 1 of the Code of Civil Procedure specifically stipulates that the parties must consider the use of private dispute and prevention processes even before making an application to the courts.

The first question often asked is whether there are co-ownerships subjects that cannot be mediated. The answer is no. The mediation process is a consensual conflict resolution process. Thus, once the parties, in good faith, are ready to participate to a negotiation table, they can agree to settle their dispute, without any judicial intervention.

What is the role of the mediator in the context of a dispute between co-owners or between a co-owner and his Syndicate? The mediator does not adjudicate; as he does not act as a judge. His role is at the level of acting as a neutral third party who hears the grievances of each party and accompanies them in a consensual resolution process of their dispute by showing the parties the various aspects they might have overseen. His role is one of facilitator, and also of proposing solutions, if appropriate, to the parties in order to assist the parties in the process. At times working in coccus or in plenary sessions, each mediator is free to use his own method, depending on the nature of the case and the willingness of the parties to proceed one way or another. From experience the combination of the two methods is acceptable to the parties since they feel free to explain to the mediator "in private" their respective points of view and then return to the negotiating table with a position devoid of emotions which would otherwise delay discussions on substantive issues.

Obviously, in a mediation process, both parties must bear in mind that, that they will need to renounce to certain claims or grievances so that by reasonable accommodations a reasonable consensus can be achieved. This may be off putting for the parties, but it should be borne in mind that Court judgments do not always resolve all the issues either: some judgments may split the claims in two or a party may end up with less than originally foreseen. However, mediation should not be perceived as buying peace, but rather as a rational approach to problem resolution different than the traditional legal process.

Consider, for example, noise problems or neighborhood inconveniences in co-ownerships. Mediation can lead to solutions that, while imperfect, can be acceptable depending on the circumstances.

Mediation is now an avenue promoted the legislator and its use must, at the very least, be considered by the parties before making an application to the courts. The Québec Bar issues official certificates to its members who have undergone specific training in this field.