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The Wisdom of the Quebec Lawmaker and Mediation: How Game Theory Provides a Nudge in the Right Direction

In the new Code of Civil Procedure, Quebec’s lawmakers have shown a strong resolve in favour of private processes for preventing and resolving disputes. This resolve is manifested not only in the preliminary provision, but also by the fact that considering private means is now a mandatory step prior to litigation. As it is so recent, early assessments of the new Code are based on anecdotal evidence rather than a systematic analysis of private processes. Taking an approach rooted in mathematical economics demonstrates the lawmakers’ (somewhat unintentional) wisdom in advocating for these private processes — particularly in the case of mediation — as they favour more optimal dispute resolution for the parties involved than litigation. In this context, optimality refers to a strategy that maximizes utility for the parties. This approach reveals the mechanisms that make mediation optimal in many cases where parties are involved in a dispute.