While the Directive applies only to cross-border disputes, the legislator took the opportunity to implement a general legal framework for mediation, very broadly applicable to all proceedings in civil and commercial matters, both on a national and cross-border level.
By introducing these provisions directly in a dedicated title of the New Code of Civil Procedure following the existing title on arbitration, the Luxembourg legislator has expressed its wish to put mediation forward as a procedure equally important as existing judicial procedures.
The mediation process is implemented on a voluntary basis and therefore always requires the agreement of the parties.
Terms of mediation
The parties may agree to use mediation at any time, until arguments before the court have been closed. However, the parties may chose to have recourse to mediation before the dispute arises, through a mediation clause, or before judicial proceedings are initiated, via a conventional mediation process. Mediation can also take place under the surveillance of a judge if the matter has already been brought before a court, in which case it is referred to as judicial mediation.
Mediation clause
In the presence of a clause providing for mediation in case of dispute, the judge or arbitrator hearing the dispute must, if requested by a party, suspend the examination of the cause which he may resume in case of failure of the mediation process or if the clause is invalid.
Conventional mediation
It is characterized by its flexibility of implementation. The principle is that the parties establish a mediation agreement stating, among other things, the subject matter and terms of conduct of the mediation process. The mediator is chosen freely by the parties and may be approved or not. If successful, a mediation agreement setting out the specific commitments made by each party is prepared and signed by the parties.
Judicial mediation
Judicial mediation is more strictly regulated than conventional mediation. It is ordered by the judge (other than the judge or cassation) at the request or with the agreement of the parties and can not be conducted by a certified mediator. It should in principle reach within three months of referral to the Ombudsman failing which legal proceedings resumed. The judge hearing the case remains pending the outcome of the mediation proces.
General principles applicable to mediation
The new plan contains specific procedural rules designed to ensure proper coordination between mediation and traditional court process.
The text provides a specific principle of confidentiality of documents, papers and statements obtained during the mediation process that can not be produced or submitted as evidence in any subsequent proceedings, judicial or otherwise.
The text also provides that the signing of a mediation agreement suspends the period of limitation which, if any, takes on failure of the mediation process. Judicial mediation suspends for its procedural deadlines may be imposed on the parties to the proceeding.
Enforceability of agreements resulting from mediation.
The major contribution of the new legislation is the possibility for parties to register their agreement by a judge, which has the effect to make it enforceable as a judgment.
Approval may be requested by one or more parties to the dispute to the President of the District Court and can not be denied in very limited circumstances, including if the agreement is contrary to public order or is excluded from the scope of mediation.
Mediation agreements concluded and declared enforceable in other member states are recognized in Luxembourg in accordance with the rules governing the exequatur of court decisions.
As for mediation agreements concluded in another member state but there have not yet been declared enforceable, they can be registered in the same manner that a mediation agreement which was signed in Luxembourg.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
