What is conflict mediation?
A form of alternative dispute resolution
Instead of leaving a dispute to the discretion of a court or arbitrator(s), in mediation the parties control the resolution themselves. Because communication between them has been disrupted to a greater or lesser extent or because they have reached an impasse, a mediator is called upon.
A voluntary and confidential process
Importantly, mediation is a voluntary process. Either party can leave the mediation table at any time, but the mediator can also terminate the mediation, for example if he considers that the parties or one of them is not at the table with the required commitment, or that the conflict is not mediable.
Unlike proceedings before a court, where the case will be argued at a public hearing, mediation is a confidential process. The documents prepared and communications made during and for the purpose of the mediation process are confidential and the parties cannot therefore rely on them outside the mediation. This confidentiality does not apply to the mediation protocol and mediation agreement, unless the parties agree otherwise. Moreover, the mediator is bound by professional secrecy.
A mediator guides the parties to a negotiated resolution of their dispute
As an independent, neutral and impartial third party, the mediator will eliminate the communication breakdowns between the parties and guide them towards a negotiated resolution of their dispute. He brings the parties from a view based on personal views, sometimes rigid and possibly even erroneous assessment of the existing relations to a forward-looking and interest-based view of the situation. From this renewed outlook and open communication, the mediator helps the parties generate all possible options that could serve their interests. From all these options, the parties then select the effectively viable ones that satisfy as many of the interests of each in the best way possible to use as building blocks for an agreement to resolve their dispute. The parties are not formally bound until an agreement is signed.
The mediator's independence includes that he or she has no economic link with any of the parties. The mediator is neutral towards the exact mechanism for resolution of the dispute which is left in the hands of the parties to freely decide. Impartiality signifies that the mediator has no emotional attachment to any party and has no bias for or against any of the parties.
CloseThe voluntary nature of the mediation is set out in Article 1729 of the Judicial Code: Either party may terminate the mediation at any time, without prejudice to its detriment.
The necessarily voluntary nature of mediation is also prescribed in European Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters, Article 3 of which defines mediation as "a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator."
The confidential character of the mediation is set forth in Article 1728 of the Judicial Code : § 1. Documents drawn up and communications made in the course of and for the benefit of a mediation procedure are confidential. They may not be invoked in any judicial, administrative or arbitral proceedings or in any other dispute resolution proceedings and are not admissible as evidence, even as extrajudicial confessions.
Unless otherwise expressed in writing by the parties, the mediation protocol and the mediation agreement(s) signed by the parties as well as any document prepared by the mediator establishing the fact of the failure of the mediation are not subject to this confidentiality obligation.
In addition, with the written agreement of the parties, and within such limits as they determine, the duty of confidentiality may be waived. Conversely, the parties may, by mutual agreement and in writing, make documents or communications dating from before the start of the mediation process confidential.
§ 2. Without prejudice to his legal obligations, the mediator may not disclose the facts of which he learns by virtue of his office. He may not be called by the parties as a witness in civil, administrative or arbitration proceedings concerning the facts of which he has become aware in the course of his mediation. Nor may he disclose the reason for the failure of this form of amicable conflict resolution, including to the judge or arbitrator before whom a dispute between the parties to the mediation is pending.
