Mediation

In contrast with judicial proceedings, which have the court or a third party making the final decision for the Parties, mediation is a carefully organized process whereby the Parties themselves define the content of their agreement.

There are different kinds of mediation, depending on the nature of the process; you can have:

  • Contractual mediation : this is generally used either before or during the conflict.
  • Judicial mediation  : this can be used at any stage of the process, either on the initiative of the parties or on the initiative of the court.

There are different kinds of mediation depending on the field; there may be family, social, or company mediation (inter-company, or intra-company).

Mediation can only be achieved with the assistance of a third party—the mediator, who enables the Parties :

  • To re-establish a working relationship and restore mutual trust,
  • To understand the root cause of their differences and find a solution.

The mediator must make sure the Parties come up with possible solutions to meet their respective needs, interests, and concerns.

The mediation process has three essential implications :

For everyone:

Strict compliance with the rule of secrecy and total confidentiality: in other words, nothing must be said outside of the process, or any document be taken out of the mediation meeting, without the agreement of the other Party.

For the mediator:

In full compliance with the rule of neutrality of the mediator, the latter must specify that s/he will never take sides in favour of one Party or the other.

For the Parties:

The rule of courtesy applies in all exchanges between the Parties, and even if ultimately they are still in disagreement; this is crucial for relations to remain based on Respect for the Other party. The rule of listening to the Other without interrupting is also of paramount importance.

The agreement found may remain confidential, if the parties so wish. The parties may also choose to ask for an official confirmation of their agreement. Their agreement is considered to be a transactional settlement within the meaning of Articles 2044 to 2052 of the Civil Code.

The use of mediation offers several advantages :

  • It is time saving, compared to resolution of a conflict through the judicial channel.
  • It is cost saving, since the cost of mediation for the parties is generally lower than that of judicial proceedings,
  • It allows a restoration of the dialogue between the Parties,
  • It allows rebuilding the relationship between the Parties,
  • It allows the Parties to clarify their needs and develop a constructive approach to resolving the conflict.
  • The Parties themselves find and choose the solution to their disagreement, and agree on the content of their final agreement,
  • Restoration of the relationship while respecting the Other party will have enabled each Party to restore its image, preserve its reputation, and be perceived positively by its entourage (i.e. friends and family,) by co-workers and management if the conflict occurred in the company, and possibly service providers if the disagreement was with a supplier.

Mediation helps the mediated Parties move in a positive direction:

  • They agree to question their respective functioning,
  • To engage in listening and show respect for the Other party,
  • Finally, everyone emerges stronger from overcoming the conflict.