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10 January 2019
Lebanon is no stranger to mediation as a mechanism for alternative dispute resolution (ADR). Parties to a contract often include a mediation clause to resolve potential disputes.
In line with Lebanon's pro-ADR attitude, a further option was made available to parties on 18 October 2018 through the implementation of Law 82,(1) which has introduced judicial mediation to Lebanon for the first time.
The legislature has provided various reasons as to why Lebanon needs judicial mediation. First, the continuous development, diversification and complication of economic transactions has led to an accumulation of lawsuits before the Lebanese courts. In turn, this has resulted in difficulties for judges, who face an increasingly overwhelming workload.
Judicial mediation can help to remedy these issues, as it offers an alternative mechanism for the settlement of disputes in an efficient, fair, timely and confidential manner.
The new law clarifies the concept of mediation by providing a general definition of mediation and a more specific elaboration on judicial mediation.
Mediation is defined as an alternative mode of dispute resolution in which the parties have recourse to an impartial third party – the mediator – whose role is to assist and encourage the parties to communicate and negotiate in view of settling their dispute.
Judicial mediation is specifically the mediation to which the parties have recourse once their dispute is submitted to the court, and which can be referred to at any time during the court proceedings.
Pursuant to Article 2 of the law, judicial mediation is available in all types of dispute that are subject to settlement, as long as they do not contradict public policy and mandatory laws. The matters that cannot be subject to settlement are, for example, those relating to public policy, personal status, non-pecuniary personal rights, alimony, inheritance and bankruptcy.
Referral to judicial mediation can occur by a competent judge at any stage of proceedings before the courts. Such referral is either:
The mediation will take place under the auspices of the mediation centre mentioned by the court in its referral decision.
A 'mediation centre' is defined as a legal person, institution or body working on Lebanese territory that is certified by the Ministry of Justice and whose core mission comprises managing judicial mediation proceedings and appointing mediators.(2)
As such, the mediation centre is in charge of appointing a mediator, as agreed by the parties and pursuant to a list of mediators provided by the Ministry of Justice.(3) If the parties fail to agree on a mediation centre during the hearing in which referral to judicial mediation is decided and approved, the competent court will appoint the mediation centre to administer the dispute during the same hearing. The referral to judicial mediation is notified to the parties and to the mediation centre by the court registry.
Referrals are not subject to appeal by ordinary or extraordinary means,(4) which helps to avoid dilatory tactics by the parties aiming to delay the recourse to mediation.
One important feature of the law is that the recourse to mediation will not affect the legal and judicial time-limit. The law clearly provides that when the decision to refer the dispute to judicial mediation is issued by the court, limitation periods are suspended and will resume only once the mediation proceedings have ended.(5) However, in the interim, the competent court retains the power to undertake the necessary measures to safeguard the parties' rights.
A 'mediator' is defined as a natural person vested with the mission to mediate and whose name is on the list of mediators in line with the qualifications provided for in the mediation law and any subsequent decrees.(6)
Every mediator must be and remain impartial and independent of the parties involved in the mediation proceedings. They must sign a statement of impartiality and independence within three working days of appointment.(7) During the mediation proceedings, the mediator must inform the mediation centre in writing of any facts or circumstances that have arisen or may arise and that could call into question the mediator's impartiality or independence in the eyes of the parties. A mediator can be challenged on the same grounds as judges, as set out under Articles 120 and 121 of the Code of Civil Procedure.(8)
Another particularity of this law is that it provides rules regarding the mediator's professional conduct. As such, the mediator guarantees to continuously renew and strengthen their skills through theoretical and practical training. The law further requires that the mediator conduct the proceedings in a competent and serious manner, while remaining independent and impartial.(9) For instance, the mediator guarantees not to directly collect expenses from the parties, regardless of their nature. The mediator also guarantees to resign, unless otherwise agreed by the parties, whenever they and one of the parties are bound by kinship up to the second degree or have any personal or business relationship.
The new law sets out the rules to be followed during the mediation process. Mediation proceedings are confidential and must be attended in person or, for natural persons, by a legal representative vested with the authority of settlement and waiver.(10) Mediation proceedings can last for a maximum of 30 working days from the date of referral, unless the mediation centre chooses to extend this period for an additional 30 days on receipt of a written and signed request by the parties and the mediator. The centre must notify the court of such extension within within three working days from the extension decision.(11)
While conducting the mediation proceedings, the mediator takes into account the needs of the parties and applies equal treatment.(12) The mediator does not give the parties a solution to their dispute and is not vested with investigation powers. However, for the need of the mediation, and upon the parties' agreement, the mediator can hear third parties with their consent.
The mediator can hear the parties separately but is prohibited from disclosing to the other party any information that was discussed during the private hearing, subject to the approval of the disclosing party.(13)
The mediator, the parties, any individual taking part in the mediation proceedings and the mediation centre all have a duty of confidentiality. They are prohibited from disclosing any information invoked during the proceedings, unless authorised by all parties.(14)
Further, the parties are required to participate in the mediation proceedings in good faith and to demonstrate transparency and cooperation.(15)
One attractive feature of the mediation law is that the time limits are reduced at all stages.
At the referral stage, the parties provide the mediation centre brief notes on the dispute within three working days from the decision to refer the dispute to mediation.(16) The mediation centre will notify the competent court of its approval or refusal to manage the matter within four working days of having been notified of the referral.(17)
If the parties fail to appoint a mediator within three working days from the approval of the mediation centre to administer the matter, then the latter will make the appointment within 10 working days of being notified of the referral.(18)
Mediation proceedings are concluded by:
Once mediation proceedings are over, the mediator must submit a report to the mediation centre regarding the proceedings and the result reached within three working days.(20) The centre will subsequently submit the report to the competent court within five working days from receipt.
If the dispute has not been settled, the competent court will re-add the matter to the ledger of ongoing proceedings at the court registry.
In cases where the judicial mediation ends and the parties do reach a settlement, the competent court will grant such settlement exequatur (ie, an enforcement order).
Decisions granting exequatur of a settlement agreement are not subject to any form of appeal.(21) However, a third party can object to such a decision before the competent court pursuant to the provisions of Article 681(1) of the Code of Civil Procedure.
The law on judicial mediation was highly awaited and is now welcomed in the mediation community. It both reinforces and favours ADR as an efficient mode of dispute resolution in Lebanon, and signals promising, continued expansion for mediation in the future.
For further information on this topic please contact Zeina Obeid or Valeria Spagnolo at Obeid Law Firm by telephone (+961 1 36 37 90) or email (email@example.com or firstname.lastname@example.org). The Obeid Law Firm can be accessed at www.obeidlawfirm.com.
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