What does the new Code of Civil Procedure now provide for regarding mediation and arbitration?

The new Code of Civil Procedure of Quebec, in force since January 1^st, 2016 now imposes an obligation on the parties to "consider" the use of private and alternate dispute resolution mechanisms to settle their dispute before going to Court, such as mediation, negotiation and arbitration.

So, considering an alternate dispute resolution now seems to become a mandatory step before filing a lawsuit in Court. To this end, the parties involved in a dispute must "consider" the opportunity to submit their dispute to mediation before taking legal action. This new obligation under the new Code of Civil Procedure has the effect of promoting the use of mediation to resolve a dispute between the parties in a way other than filing proceedings in Court, hence providing the parties with the opportunity to use a dispute settlement mechanism that is more faster, cheaper and more efficient while enabling a better administration of justice.

But what is the scope of this new requirement under the Code of Civil Procedure of Quebec? If we look at the definition of "consider", it means the act of looking carefully, to contemplate through careful examination a thing or a situation before taking an action in particular.

However, it should be noted that this new provision of the Code of Civil Procedure of Quebec does not compel the parties to use alternate dispute resolution methods, including mediation, before filing a lawsuit, as the Code does not provide for any sanction in case of non-compliance with this provision, although the Court can still choose to impose sanctions for non-compliance by awarding legal costs.

Should the parties file proceedings before Court, it will be appropriate to indicate in the originating application the consideration that was given to the use of these alternate dispute resolution mechanisms before the action was brought to demonstrate to the Court that this new requirement under the Code of Civil Procedure was met and provide a confirmation that there has been compliance with the new provision of the Code, if any.