With the aim of further developing the legal framework for mediation, the Lebanese Parliament enacted Lebanon Law No. 286 /2022 in April 2022 pertaining to Conventional Mediation. The purpose of this commentary is to analyse the law and to explicit the scope of conventional mediation compared to the judicial mediation previously discussed, its process and benefits.
Raison d'être of conventional mediation
Chronologically speaking, conventional mediation existed before the development of judicial mediation. Its origin dates back to valued and respected individuals who took the role of mediators or conciliators in a community, notably in rural or tribal communities, trying to solve raised issues amicably instead of, or at least before, resorting to punishment and/or force. Creating a set of legal framework for this practice will allow its modern and regulated application, bringing the best of mediation's advantages in the resolution of a dispute before it is settled by judicial courts. In the written motives of Lebanon Law No. 286/2022, the legislator brings out the difference between judicial and conventional mediation and the specific need for a law that covers the latter. Indeed, as judicial mediation tackles the conflicts referred to it by the courts (see: Legislative Insight on Lebanon Judicial Mediation Law), conventional mediation addresses disputes that the parties agree, preventively, to solve through mediation, hence its “conventionality” without resorting to courts. Lebanon Law No. 286/2022 allows the completion of the basic legal structure that frames the recourse to mediation as an alternative dispute resolution tool in Lebanon.
The scope of conventional mediation
As a reminder, mediation is best defined as a discussion between two parties with the assistance of a third impartial party, the mediator. Mediation’s ideal goal is for all parties to initiate and agree on a solution. Nevertheless, mediation’s first goal is to reestablish communication between the parties for them to reach a better understanding of the problem and their respective positions on the matter. Similar to judicial mediation, the fields in which the conventional mediation can intervene or be resorted to, are various, with the only limit being in respect of mandatory laws or public policies such as non-pecuniary personal rights, matters related to personal status, crimes, bankruptcy, or inheritance (article 2 of Lebanon Law No. 286/2022). Conventional mediation allows the parties recourse to it without depending on the decision of the courts. The choice comes from their own agreement to enter into mediation, either through a contractual clause in their main contract, or through a separate contract set up to govern mediation, according to article 3 of Lebanon Law No. 286/2022.
Referral to mediation
The important point to highlight regarding the referral to mediation is the liberty of the parties to resort to it. In this respect, the last paragraph of the abovementioned article 3 of Lebanon Law No. 286/2022, underlines that whether conventional mediation is preset by a clause or a contract, the only mandatory aspect pertains to the attendance to the first mediation session, after which the parties “regain” their liberty: they are free to choose if they wish to carry on the process or interrupt it.
Proceedings
Lebanon Law No. 286/2022, refers to the provisions of Lebanon Law No. 82/2018 related to the process of judicial mediation in Lebanon and its statutes of limitation. By way of a quick reminder, the essential legal points to retain are briefly as follows:
1. The parties must be present personally (article 12 of Lebanon Law No. 82/2018).
2. The mediator is legally bound to consider the needs of all parties involved and apply equal treatment.
3. The mediator is allowed to meet with one of the parties separately. Disclosing any information obtained from the private hearing to the other party is prohibited unless authorised otherwise (article 14 of Lebanon Law No. 82/2018).
4. The mediator is present only to assist with the discussion between the parties, and not to implement nor to propose solutions to the dispute.
5. The parties are required to participate in good faith and act cooperatively and transparently (article 17 of Lebanon Law No. 82/2018).
6. The duration of the mediation should last a maximum of 30 days from the date of referral (article 11 Lebanon Law No. 82/2018). This period may be extended to an additional 30 days following a written request signed and approved by the mediator and the parties.
The mediator
According to article 2 of Lebanon Law No. 286/2022, for conventional mediation to be considered as such, the parties should refer to a “specialised mediator” defined in article 1(g) of Lebanon Law No. 286/2022 as a mediator engaged in a mediatorship and whose name is listed in the list of mediators validated by the Ministry of Justice. The said list being also defined in article 1 (h/7) of Lebanon Law No. 286/2022 as the one established by the mediation centres in which the mediators are listed according to the provisions of Lebanon Law No. 82/2018 and its implementing decrees. In other terms, each and every mediator allowed to lead a conventional, or judicial, mediation should belong to mediation centres validated by the Ministry of Justice, to lead a conventional, or judicial, mediation should belong to mediation centres validated by the Ministry of Justice, according to implementing decrees that are yet to be enacted.
The obligations and the role of the mediator are detailed in articles 4-5 of Lebanon Law No. 286/2022. According to these articles, the mediator must abide by the provisions of the signed mediation agreement between the parties. Given that there is no authority intervening in the process at an early stage, the mediator is legally bound to verify before the start of the procedure, that the parties are aware of the mediation, its principles, the role of the mediator and only then, proceed with the mediation. This verification covers notably the fees and expenses of the mediator that should be brought to the attention and approval of the parties prior to initiating the procedure.
Furthermore, the mediator is legally obliged to remain impartial and independent of all parties involved in the process. Therefore, according to article 10 of Lebanon Law No. 286/2022, the mediator is expected to disclose to the parties any factor that may affect their impartiality and independence. Additionally, article 11 of Lebanon Law No. 286/2022 stresses on the full confidentiality of the exchanges that occur during and within the context of the mediation.
Outcomes of conventional mediation
As the freedom of the parties is one of the main pillars of mediation, the end of the procedure can take two forms: interrupting the mediation without reaching an agreement (as per the situations mentioned in article 9 of Lebanon Law No.286/2022) or signing a settlement agreement that reflects the conclusion reached by the parties. It is important to note that in the first situation the parties can go to court to sort out the problem and in the second situation, only the parties would sign the settlement agreement without the participation of the mediator. The settlement agreement would then be submitted to a notary to be officialised according to article 12 of Lebanon Law 286/2022. Besides this provision, Lebanon Law No. 286/2022 does not specify an exequatur procedure to allow the enforcement of the settlement agreement as compared to the judicial mediation whereby this procedure is foreseen.
Recommendations
Mediation has recently become a recommended alternative tool to dispute resolutions. Whether on a national or an international scale, mediation has gained new ground, the passing of the Lebanese laws is a perfect example of it. Notably, mediation presented itself in Lebanon as an alternative to the latest judicial crisis and strikes hindering people's access to their rights. Nevertheless, many members of the legal profession are still cautious on moving in this direction not to mention the ever-present incompleteness of the legal tools of mediation, namely the publication of the implementing decrees. The implementing decrees should clarify the certification process and criteria of the mediation centres approved by the Government. The centres are key actors in the listing of the mediators and consequently the validation of the mediations. The need for the implementing decrees is becoming a major obstacle to the full deployment of mediation in the Lebanese legal sector.
Even so, several conventional mediations are happening and being executed regardless of the incomplete tools given that in most of the cases the parties benevolently execute the agreement they reached. Therefore, in line with the previous article’s appeal (Legislative Insight on Lebanon Judicial Mediation Law), we reiterate our invitation to the Ministry of Justice to expedite the process and proceed with the necessary publication of the implementing decree