Lebanon Judicial Mediation Law
Mediation in Lebanon was first introduced in 2005, through the Centre Professionnel de Mediation at Saint Joseph University, one of the oldest and most reputable universities in the country. However, it was more than a decade later that mediation was introduced in the Lebanese legal system. In September 2018, the Lebanese Parliament enacted Lebanon Law No. 82/2018 on Judicial Mediation, which introduced judicial mediation into the civil system for the first time. This commentary aims to analyse the law, the scope of judicial mediation, its process and benefits.
Raison d'être of judicial mediation
Referring to judicial mediation within a court process complies with the recent international development of alternative dispute resolution practice (ADR). The Lebanese Parliament, by adopting Lebanon Law No. 82/2018, aimed at bringing the best of mediation's advantages in the resolution of a dispute that is brought before judicial courts.
In the written motives of Lebanon Law No. 82/2018, the legislator first pointed out the constant developments and diversification of commercial transactions and operations in Lebanon; such developments have exhausted the resources of the national judicial system due to the high number of lawsuits and the length that it takes to solve each lawsuit. Secondly, the legislator has indicated that the cost of going to court is not an accessible option for many. Finally, it was mentioned that opting to find a solution in court is not always the best option. Indeed, in court, unlike in mediation, there is always a losing party. This leads to scepticism and criticism of the judge and gives the losing party a possibility for appeal. However, the mediation process aims at reaching an agreement between both parties and finding a solution for their dispute that fits their needs and satisfy their mutual interests. These are the reasons the Parliament found it necessary to implement alternative dispute resolution that would resolve conflicts in a swifter, just and a cost-effective way. The judicial mediation process comprises of full confidentiality, unlike most litigation cases, and ensures that both parties are cooperating and communicating in order to find a balanced compromise.
Evidently, the promulgation of Lebanon Law No. 82/2018 aims at encouraging and developing the practice of mediation throughout the nation.
The scope of judicial mediation
Mediation is a form of alternative dispute resolution. It is best defined as a negotiation between two parties with the assistance of a third impartial party, the mediator. Mediation requires all parties to agree on a solution, and the process usually takes place without the involvement of the court. Judicial mediation however allows the parties to have recourse to mediation only after their disputes have been submitted to court and it can be referred to at any time during the lawsuit and court proceedings according to Article 1 of Lebanon Law No. 82/2018.
According to Article 2 of Lebanon Law No. 82/2018, judicial mediation can be referred to in order to solve any type of dispute that do not contradict mandatory laws or public policies and that can be settled by a transactional agreement as provided for in the Lebanese laws. This excludes, for example, non-pecuniary personal rights, matters related to personal status, crimes, bankruptcy or inheritance.
Referral to mediation
As mentioned previously, judicial mediation can be referred to at any time during the court proceedings. The referral can take place in three instances:
- if it is proposed by a competent judge in court and approved by all parties involved;
- if it is requested by one of the parties;
- or if it was made in application of a mediation agreement clause.
Article 4 of Lebanon Law No. 82/2018 specifies that referrals are not subject to appeal by neither ordinary nor extraordinary means. This highlights another reason why mediation can be a faster option to resolve disputes.
Lebanon Law No. 82/2018 regulates the process of judicial mediation in Lebanon. First, the parties must be present personally (if natural persons) or must be duly represented (if corporate/legal entity) as per Article 12 of Lebanon Law No. 82/2018. During the judicial mediation proceedings, the mediator is legally bound to take into account the needs of all parties involved and apply equal treatment. However, the mediator is allowed to meet with one of the parties separately, but they are prohibited from disclosing any information obtained from the private hearing to the other party as per Article 14 of Lebanon Law No. 82/2018, unless the disclosing party requires or approves it.
It is important to note that the mediator is present to assist with the negotiations between the parties, and they, unlike in arbitration proceedings, do not have the power to implement nor to propose solutions to the dispute. According to Article 17 of Lebanon Law No. 82/2018, the parties involved are required to participate in good faith and act cooperatively and transparently; they are invited to agree on a solution that they would both reach for their dispute, preserving both parties' interests. This feature demonstrates that mediation aims to protect and maintain the business or personal relationships of the parties. This is less likely to happen in court.
Overall, the duration of the mediation should last a maximum of 30 days from the date of referral according to Article 11 Lebanon Law No. 82/2018. However, the mediation centre may extend this period for an additional 30 days subject to a written request signed and approved by the mediator and the parties. This extension must be notified to the court within three working days. This feature reflects how time-effective the practice of mediation is compared to the traditional litigation process.
Article 1(c) of Lebanon Law No. 82/2018 defines the mediator as a natural person belonging to one of the mediation centres approved by the Ministry of Justice. If the parties do not agree on the mediation centre referred to, the court will determine the mediation centre to resolve the dispute.
Lebanon Law No. 82/2018 regulates the conduct of the mediator. The mediator is legally obliged to remain impartial and independent of all parties involved in the process. Under Article 8(2) of Lebanon Law No. 82/2018, the mediator must sign a statement of impartiality and independence. Annex 1 of Lebanon Law No. 82/2018 provides a non-exhaustive list of the impartial and independent conducts. For example, the mediator must give all parties a fair and equal chance to participate and share their view of the dispute, they must not accept any bribes from the parties and must notify the mediation centre of any facts or circumstances that might hinder their impartiality or independence. Annex 1 of Lebanon Law No. 82/2018 further specifies that the mediator must deal with the details of the disputes in full confidentiality and must handle the proceedings in a professional and serious manner.
Outcomes of judicial mediation
There are two possible outcomes at the end of the mediation. Either the dispute has not been settled, in which case the relevant court will resume its proceedings, or the dispute has been settled, in which case the competent court will grant this settlement an exequatur such as an enforcement order that will render it legally binding. Article 21 of Lebanon Law No. 82 /2018 specifies that the settlement is not subject to appeal by the parties once it has been submitted to court. This once again highlights the time-efficient attribution of the mediation route.
Mediation is completed in one of the following situations as per Article 19 of Lebanon Law No. 82/2018:
- the settlement agreement is signed by both parties;
- one of the parties submits a written declaration that they no longer wish to continue with the mediation;
- the mediator submits a written declaration stating that mediation is fruitless, and no solution can be reached via this route;
- an agreement is signed between the parties and the mediator stating that mediation has ended;
- one of the parties was absent for two consecutive mediation sessions without a legitimate excuse; or
- the duration of the judicial mediation (and/or its extension) is expired.
Worldwide, mediation has proven to be a popular method to solve disputes. This is no surprise as it is an effective, cost-friendly and swift method to resolve disputes. Despite these benefits, the practice of mediation has not fully integrated the Lebanese landscape yet.
According to Article 24 of Lebanon Law No. 82/2018, Lebanon Law No. 82/2018 will only enter into force six months after the date of its publication in the Official Gazette. During these six months, the Cabinet of Ministers is invited according Article 24 of Lebanon Law No. 82/2018 to enact implementation decrees, based on the proposition of the Minister of Justice. Although Lebanon Law No. 82/2018 was enacted more than two years ago, not a single referral to judicial mediation has been done by the Ministry of Justice. Due to the absence of implementation decisions taken, not a single mediation centre has been approved by the Government yet. Unfortunately, the benefits of Lebanon Law No. 82/2018 are yet to be enjoyed in Lebanon as the law remains in the theoretical realm.
There is an urgent need to promote mediation for litigants to ensure the resolution of commercial and civil disputes. This is especially true now, as the judicial system in Lebanon is being overflowed with cases and disputes due to the economic collapse that the nation is enduring. Mediation will bring a valuable contribution to Lebanese businesses.
Even though the Cabinet of Ministers still hasn't fully implemented Lebanon Law No. 82/2018, the Lebanese legal sector is ready to welcome mediation. Indeed, the two main mediation centres in Lebanon are the Centre Professionel de Mediation (CPM) at Saint Joseph University and the Lebanese Arbitration and Mediation Centre established at the Beirut Chamber of Commerce. Furthermore, Lebanon has seen a numerous amount of law firms adding mediation to their services. Integrating the practice of mediation within the system in Lebanon will be beneficial to all, including the parties, the courts and the economy. It is not enough to enact the legislation; we should make sure it is being implemented. The Ministry of Justice is invited to encourage judges to refer to judicial mediation more often as to make a norm out of it.