Conventional (or extra-judicial) mediation

Verified 09 December 2024 - Directorate for Legal and Administrative Information (Prime Minister)

Conventional mediation also, called extrajudicial mediation, which enables an agreement to be reached to settle a dispute with the intervention of a third party: the mediator. It is initiated by the parties (unlike judicial mediation proposed by the judge at the time of a trial). The mediator shall be paid by the parties. Mediation can be used in the commercial field or in the field of labor law.

Mediation is "conventional" (or "out-of-court") when the parties attempt to resolve a dispute amicably before referring the matter to a judge. In this case, they appoint a mediator to help them reach a compromise.

The use of mediation should be favored when the parties are called upon to pursue professional or commercial relations: for example, in the event of non-compliant goods being delivered, difficulties in recovering unpaid debts, conflicts over taking over work in a commercial lease.

Mediation is confidential, for example in order to preserve the image of the company’s brand or the reputation of its leader.

In practice, mediation is proving to be an effective process, followed by an agreement outcome in almost 70% cases.

Warning  

In the event of a dispute concerning the performance of a contract of sale or service, the trader duty offer the consumer recourse to a consumer ombudsman.

Public mediators may also be used depending on the type of dispute:

Conventional mediation may be provided for in a contract before a dispute arises. The parties may also decide to use it by mutual agreement during the dispute:

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Before the dispute

The parties may provide in a contract for the use of mediation in disputes between them. Mediation is then provided for in a clause mediation.

The clause must include the following:

  • Implementation of mediation before any judicial proceedings
  • Scope of the subject matter of the mediation (e.g. non-compliance with payment deadlines, non-performance of a delivery obligation or any dispute concerning the performance of the contract concerned)
  • Appointment of the Ombudsman and conduct of the procedure

FYI  

Where mediation is provided for in a clause of a contract, the parties have an obligation to resort to it before bringing any case before a judge.

After a dispute arises

In the absence of clause mediation in the contract, the parties may decide by mutual agreement to use mediation after a dispute has arisen.

The mediator may be a natural person or a legal person. The latter must then designate a natural person to carry out the mediation.

The appointed mediator must fulfill the following 2 conditions:

  • Not to have been convicted, incapacity or a forfeiture mentioned on the criminal record sheet no 3
  • Have the required qualification according to the dispute: training or experience adapted to the practice of mediation

The mediator shall be paid by the parties.

There are different types of mediators:

  • Professional Ombudsman : This is a person specifically trained to facilitate conflict resolution. Professional mediators may be engaged by the parties to the conflict or be recommended by organizations specialized in mediation.
  • Mediator : A lawyer may act as a mediator. This can be particularly useful when the conflict involves complex legal issues and the parties prefer to avoid formal legal proceedings.
  • Institutional Ombudsman : Some institutions, such as Chambers of Commerce and Industry (CCI), professional associations or non-governmental organizations, offer mediation services. Mediators working within these institutions may be appointed to intervene in conflicts.
  • Ombudsman appointed by mutual agreement : The parties to the conflict may agree on a mediator to facilitate the resolution of their dispute. They may be someone they know and trust, or a professional recommended by a trusted third party

It is not the role of the Ombudsman to decide the dispute. It must enable the parties to resume dialog so that they can reach a lasting agreement together. I

He carries out his mission with impartiality : it conducts the mediation process in a neutral and objective manner. He never takes a position on either side.

It is also self-employed : in this case, he must indicate all the circumstances which could affect his independence or give rise to a conflict of interests

Mediation takes place in 4 steps :

  1. Statement of facts by each party so that the mediator knows the origin of the conflict
  2. Seeking the interests and needs of the parties, through separate interviews if necessary
  3. List by the mediator of the solutions envisaged by the parties
  4. Production of the Memorandum of Understanding (or transactional agreement) signed by the parties

The duration of mediation depends on the will of the parties. They have to set a timetable. One or more mediation sessions may be required to reach an agreement.

During mediation, the parties shall respect the principle of confidentiality. All information shared in the mediation process therefore remains secret. However, with the agreement of the parties, the findings of the mediator and the statements gathered during the mediation may be communicated to persons outside the mediation, for example to certain employees of the company.

Conventional mediation ends in one of the following ways:

  • Success of the mediation: an agreement is reached between the parties.
  • Mediation failed: an agreement was not reached. The parties are also free to terminate the mediation.

Success of the mediation

Mediation was successful when the parties reached an agreement:

  • The agreement can be total, so the conflict is resolved.
  • The agreement is partial and settles only a few elements of the dispute.

Whether total or partial, this agreement may be formalized in a contract.

The parties may give it the force of a court decision and give it enforceable.

To do so, they must do one of the following:

  • Make certify the mediation agreement by a judge by presenting the agreement together before the court
  • Make countersign the mediation agreement by the respective lawyers and to have an enforceable formula affixed by the Registry.
Approval of the agreement by the court

The court competent to approve the mediation agreement shall be the one which may be seised to rule on the dispute.

The approval makes the agreement secure since one of the parties can ask for it enforcement if the other fails to live up to its commitments.

The judge may refuse the approval. This refusal can be appealed.

Countersigning of the agreement by the respective lawyers

The Mediation Agreement shall be equivalent to enforceable title if he fills the 2 conditions following:

  • Countersignature by counsel for each party
  • Enforceable form to be affixed by the Registry of the competent court

In order to be enforceable, the document countersigned by counsel for each party requires the Registry to file an enforceable form on the document.

To that end, one of the parties shall address the Registry, in writing and in duplicate, at the Registry of the court of the applicant's domicile.

Mediation failed

Mediation failed when the parties failed to reach an agreement. The dispute is not resolved and the mediator then makes a finding of failure.

Where one of the parties refuses to engage in the mediation process, the mediator shall make a finding of non-compliance.

If the mediation process fails, the parties can then go to court.

FYI  

If the dispute is brought before the courts, the parties will not be able to use the information revealed during mediation because of its confidential nature. They must prove that the information was obtained in another context.

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