Are Private Prevention and Resolution Processes the New Dilatory Exceptions?

We’ve always found it somewhat confusing and nonsensical that Quebec’s soon to be former Code of Civil Procedure contains a section titled “dilatory exceptions”, i.e. procedures “intended to cause delay”. At a time when we are constantly reminded that access to justice is hindered by costly procedures and long delays, and that we should find ways to streamline the legal process, it seems incongruous to actually draft dispositions that allow for longer delays and higher costs at one party’s behest. This is not to say that sections 168 and ss. of the Code of Civil Procedure don’t have a valid purpose, just that their title was ill chosen since it sends the wrong message.

Thankfully, when drafting the new Code of Civil Procedure, the Quebec legislator did not chose to recycle the “Dilatory exceptions” title. In fact, the word “dilatory” is only used once in the French version of the Code (in section 51), whereas it was replaced by “intended to cause delay” in the English text. It furthermore has regained its negative connotation, as it is now strictly associated with abusive procedures.

But what, one may ask, does this long prologue have to do with online dispute resolution (ODR)? Simply that many fear that alternative dispute resolution (ADR) and its online counterpart could become the new “dilatory exception”, and therefore cause further delays rather than limit them.

As we’ve mentioned in a previous blog, section 1 of the new Code specifies that “[p]arties must consider private prevention and resolution processes before referring their dispute to the courts”. Although section 2 of the Code goes on to add that:

“Parties who enter into a private dispute prevention and resolution process do so voluntarily. They are required to participate in the process in good faith, to be transparent with each other, including as regards the information in their possession, and to co-operate actively in searching for a solution and, if applicable, in preparing and implementing a pre-court protocol; they are also required to share the costs of the process.

They must, as must any third person assisting them, ensure that any steps they take are proportionate, in terms of the cost and time involved, to the nature and complexity of the dispute.

In addition, they are required, in any steps they take and agreements they make, to uphold human rights and freedoms and observe other public order rules.”

There are some who argue that ADR could be used as a tool to delay procedures and, therefore, diminish access to justice, i.e. going against the very goal set by the legislator in deciding to incorporate section 1 into the Code.

Just to be clear, we’re not referring to the idea that a party could impose its will contractually and use ADR or ODR to escape the jurisdiction of the courts as was debated in the aftermath of the Dell case, but rather that one party could use ADR or ODR to prolong the legal process indefinitely, therefore depleting the other’s resources. As we’ve pointed out many a time, ADR isn’t free. In fact, mediators, conciliators, arbitrators and other so-called “third persons” usually request a sometime hefty hourly rate; notwithstanding the filing fee ADR providers often impose.

So the question remains, is ADR the new “dilatory exception”? With all due respect, we fail to see the validity of the argument, especially when ADR is transposed online, i.e. when we’re dealing with ODR. First, it should be noted that private prevention and resolution processes, to use the expression found in the text, remain voluntary as per section 2 of the Code. Therefore, if a party suspect his or her vis-à-vis to be acting in bad faith, he or she can simply chose to step away from the mediation, conciliation or arbitration process. He or she even has a built-in excuse to do so since section 2 imposes that parties act in good faith. How bad faith participants in the ADR process will be punished by the courts obviously remains to be seem, but section 2 does give judges the leeway to penalize those who would use ADR for dilatory purposes.

Furthermore, the dilatory argument that has been reserved for ADR could be used for any procedure in the Code. Therefore, if we were to condemn ADR for allowing bad faith litigants to delay proceedings, shouldn’t we do the same for incidental proceedings (sections 184 and ff.)?

But even if we gave credence to the dilatory exception argument in classic ADR contexts, we would argue that ODR mechanisms, or at least ODR platforms, are safeguarded from such criticism. Since ODR platforms can, and often do, have built-in mechanisms to allow for a conflict to move on to the next stage of conflict resolution (in a negotiation-mediation-arbitration situation, for example) at the request of either party, any argument claiming that ODR slows down the process seems difficult to uphold. Obviously, one could use an ODR process to gain a few weeks, but as these weeks run concurrently with the waiting period to gain access to the courts, there is no real time loss.

For example, the Cyberjustice Laboratory’s Platform to Aid in the Resolution of Litigation Electronically or PARLe (from Middle English “to parley”, meaning “to talk with an enemy or someone you disagree with especially in order to end a conflict”) allows either party who entered the negotiation phase to move onto the mediation phase after either a specific number of interactions (for example two offers and counter-offers) or a pre-determined number of days (for example, two weeks). The choice of the mechanism belongs to the ODR provider (in our case, the Department of Justice or the Courts, as PARLe is mostly geared towards public institutions). These measures allow us to ensure that a party who feels that his or her counterpart is not taking the process seriously is not penalised by unwarranted delays.

Obviously, ODR is still in its infancy, and its usefulness has yet to properly be gauged in many fields. However, it seems unfair to claim that it shouldn’t be an integral part of the legal process simply because it could make said process longer if it is co-opted by certain dishonourable individuals, when the same could be said of any legal procedure. Furthermore, if it were the case, wouldn’t a few longer cases be warranted if the outcome were that justice as a whole is more accessible? Just because a handful of individuals abuse ADR or ODR processes, it doesn’t mean that others won’t find great relief in knowing that they can achieve closure in a cost-effective manner, and without having to go to trial.