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A legal basis for civil and commercial mediation

A legal basis for civil and commercial mediation

In accordance with the requirements of the European Directive 2008/52/EC of the European Parliament and Council of the 21st of May 2008, Luxembourg has adopted on the 24th of February2012 a legislative framework regarding mediation in civil and commercial matters in its New Code of Civil Procedure.

The new law defines mediation as “the structured process in which two or more parties to a dispute attempt by themselves voluntarily to reach an agreement on the settlement of their dispute with the assistance of an independent mediator, impartial and competent”.

Mediation is an alternative method of dispute resolution, more human, faster, simpler and less expensive than Court proceedings which guarantees confidentiality and ensures better access to justice. The duty of confidentiality may only be waived to permit the disclosure of the content of the mediation agreement or its implementation or enforcement and for compelling reasons of public policy, particularly to ensure the interest of the children or to prevent to affect the physical or psychological integrity of a person.

Mediation is a voluntary and confidential discussion conducted by a third party successfully trained to this duty. The mediator does not have any decision authority. The parties are personally involved in the management of their conflict, whereas the mediator endeavours to bring the parties together by guiding them to reach an agreement themselves. The mediator does not offer and does not impose a solution. The mediator has no powers of investigation.  He shall hear the parties together or if necessary separately and if this is accepted by the parties, hear third parties.

Mediation is covering all kinds of disputes excluding the rights and obligations which the parties cannot dispose of, provisions which are of public policy and matters relating to the State responsibility for acts and omissions in public matters.

The law applies to cross-border disputes but also to internal mediation processes. A privileged position is given to family mediation. The judge has the opportunity to offer the parties family mediation regarding divorce, separation, including liquidation, the sharing of common property and joint ownership, maintenance obligations, contribution to the marriage expenses, the legal obligation to maintain children and the exercise of parental authority.

Mediation can be initiated by the parties, proposed by the judge or on request from the parties, ordered by a judge.

Mediation may be entrusted to a licensed or non licensed mediator. An accredited mediator has to be authorised by the Minister of Justice. He has to produce the evidence of an appropriate training inLuxembourgshould he do not fulfil equivalent requirements in anotherEuropeanMemberState. The licence is granted for an unlimited duration.

In judicial mediation, the duration of the mission determined in the decision ordering mediation may not exceed 3 months.  Non accredited mediators may be appointed in cross-border litigations.

The courts retain jurisdiction during the mediation and may at any time take any action they deem necessary. They may also at the request of the mediator or of either party terminate the mediation before the set deadline.

In civil and commercial matters, legal aid does not cover the cost of a conventional mediation.

In order to obtain enforcement of a mediation agreement, an application is filed with the President of the District Court who will deny certification if the agreement is contrary to public policy or to the interest of the children, is non enforceable or if the dispute is not susceptible of settlement through mediation.

Mediation does not extinguish the action. The parties who fail to reach an agreement are free to bring a lawsuit, due to a suspension of the limitations expiring one month after the notification made of the intention to terminate the mediation. Mediation does not prohibit provisory or conservatory measures.

Véronique Wauthier

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