For MEDIATION & RESOLUTION,
mediation is negotiation assisted by a third party.
This means that:
The parties voluntarily work together to reach an agreement with the help of a third party, the mediator.
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The mediator is there to assist them, helping them to communicate better and work out a solution together.
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The mediator does not provide the solution, but rather stimulates the parties’ creativity to come up with the best possible solution.
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The parties are usually assisted by their counsel.
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Mediation offers a number of advantages over traditional dispute resolution methods (litigation and arbitration): it is faster, more constructive, more creative and less costly. It is a cooperative process, based on re-establishing trust through communication. It takes a holistic view of the conflict, taking into account parameters such as the emotions, needs, values and interests of the parties that are not taken into account by these procedures, and broadens the scope for solutions. Mediation limits the escalation of violence associated with the judicialization of the dispute, and the solution chosen by the parties poses no implementation problems.
The mediator must be an independent third party
i.e. he or she must not be bound by or subordinate to any of the parties.
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The mediator must be neutral
i.e. the outcome of the dispute must have no influence on his or her own interests.
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The mediator must be impartial
i.e. during the mediation process, he/she will not attempt to favor one party over another.
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Mediation is confidential
i.e. the mediator, the parties and their counsel cannot report anything to the judge or to third parties.
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These rules can be relaxed with the agreement of all parties.
Mediation is defined by a 2008 European directive as a structured process in which two or more parties to a dispute voluntarily attempt to reach an agreement on the resolution of their dispute with the help of a mediator.
A distinction is made between judicial mediation and conventional mediation.
JUDICIAL MEDIATION
Judicial mediation takes place during legal proceedings.
It is governed by the Code of Civil Procedure.
This text allows the judge to order mediation with the consent of the parties.
The main rules are as follows
Consent of the parties:
the parties cannot be forced to go to mediation. The judge can only suggest it. The judge sets up the mediation after obtaining the parties’ agreement.
The mediator’s competence:
they must have been trained in mediation. Certification recognizes the quality of the mediator’s training and skills.
Confidentiality:
mediation is confidential unless the parties agree otherwise.
The possibility of having the agreement approved by the court hearing the case:
homologation can be requested from the judge who “ordered” the mediation. This gives the agreement the same force as a final judgment.
The duration of the mission:
three months, renewable once (judicial mediation) the duration agreed by the parties (conventional mediation).
Supervision of the mediator’s remuneration by the judge:
the judge sets the mediator’s remuneration.
Suspension of proceedings and limitation periods during mediation:
the limitation period is suspended from the day on which, after a dispute has arisen, the parties agree to resort to mediation or, in the absence of a written agreement, from the day of the first mediation or conciliation meeting (Civil Code). The limitation period starts running again, for a period of not less than six months, from the date on which one or both parties, or the mediator or conciliator, declare that the mediation or conciliation has ended.
CONVENTIONAL MEDIATION
Conventional mediation is the one that takes place because of an agreement of the parties, independently of the judge.
The rules governing jurisdiction, confidentiality, suspension of limitation periods and approval of the agreement are those of judicial mediation.
Approval may also be requested from the judge or arbitral tribunal when a conventional mediation has taken place in the course of legal or arbitral proceedings.
Fees
In court-ordered mediation, an hourly rate is indicated to the parties and may be validated by the judge. In conventional mediation, fees are set out in the mediation agreement, and may be hourly, flat-rate or mixed.
Fees depend on the importance and complexity of the case. If necessary, we ask that the parties cover their own expenses, such as room hire, teleconferences, travel, accommodation, etc.