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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.
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