subsequent judicial procedure. The parties remain masters of the final decision which will be made by them together. In what circumstances may the use of mediation be preferable to other forms of ADR or simple litigation? In construction, especially for large projects, internal standing committees for dispute resolution can be set up to manage any conflicts that arise during project execution. These committees can be very quick and efficient in managing disputes. However, the decision remains imposed by the committee even if it is not final. Unlike arbitration or litigation, mediation is a process that focuses on respecting the respective interests of the parties rather than directly applying the applicable law or taking the form of a consensual tribunal. In mediation, the solution does not reflect the mediator’s view or interpretation of the law or the dispute but results from the sole will of the parties. The final decision will be by mutual agreement of the parties and is not made or imposed by the mediator. Finally, mediation is a low-cost process compared to other alternative dispute resolution methods in the construction field. It preserves and strengthens long-term business relationships by restoring dialogue between the different actors in the dispute. What skills and knowledge should a mediator possess in order to effectively mediate on a construction dispute? Mediation is a unique form of participatory justice because it brings the parties to discuss the dispute by their own will. They will be led to listen to each other to better understand each other’s position in a dispute. It sounds easy in a sentence, but it is quite a challenge in the mediator’s field. The mediator’s construction skills will be important, but managing the different parties in a mediation is even more important. The personality of the mediator must inspire confidence in all parties. The mediator must also be careful with body language that may indicate a position that is being interpreted by one of the parties, which will lead to a certain failure of the mediation. The management methods for conducting a mediation remain more or less the same in many areas, however, the mediator must be a good listener, eloquent and open-minded. The mediator must be patient and calm in all circumstances. How can parties and legal counsel work to ensure that mediation under these circumstances has the best possible likelihood of success? Mediation should be a prerequisite to any other alternative dispute resolution. It should be automatically advised as the preferred method of settlement to the parties by their legal counsel. It is recommended that all model construction contracts and service agreements include sections detailing the mediation process as the first resort for dispute resolution. It is also important that third party mediators be selected through a list of criteria. It is imperative that the chosen mediator have knowledge of the subject matter of the dispute as well as a number of years of experience as a mediator. The parties will need to be informed of what mediation is and its benefits in business before the contract is concluded. These procedures will allow the parties to start the mediation process quickly from the appearance of a conflict and will help to promote the chances of success of the mediation. During your time in practice, have you seen a change in attitudes regarding mediation as a tool for the resolution of construction disputes? The use of mediation has often been timid during the majority of our years of practice as a lawyer and accredited mediator in commercial and civil law, the tendency in construction law having always been for an attitude of confrontation between the parties in dispute. However, we found that the mediation process did not necessarily occur at the beginning of the dispute but rather at a certain stage of its maturity between the parties. After becoming aware of the loss of time and costs generated by the dispute, the parties create a common interest which is that of resolving their conflict quickly in the interest of all. They then agree to suspend their legal proceedings and resort to mediation. In these cases, we have recorded success rates that exceed 80%. CANADA MEDIATION LAWYER OF THE YEAR LAWYER MONTHLY LEGAL AWARDS 2025 57
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