Etude Schaller Reardon

Mediation

I. Mediation

Mediation is an area of the lawyer's legal practice. A lawyer acting as a mediator helps the parties in conflict to find a solution to a specific problem and avoid legal confrontation.

Definition of the FSA:

"Mediation is an out of court dispute resolution process, in which one or several independant and impartial third parties (mediators) help(s) the parties to a conflict to solve it themselves in an amicable way, through negociation." (author's translation of the FSA Directive nb 1 on Mediation, dated July 1st, 2005)

Mediation is one of the alternative dispute resolution processes, along with arbitration, conciliation and negociation.

The FSA mediator is bound by the attorney's confidentiality. In case of failure of the mediation, the FSA mediator is barred from representing any party in the conflict.

II. Advantages of Mediation

  1. The parties in mediation keep their autonomy in the management of their conflict. The mediation process can be adapted to the parties and to the nature of the conflict. They can craft their own solution, within the limits of the law.
  2. The mediation process is usually faster than a judicial procedure, due to the fact that it will correspond to the rhythm of the parties' work without the impact of sometimes important judicial delays. However, the parties must be aware of the fact that a certain amount of time is needed to craft a long-lasting solution.
  3. The mediation process is often less expensive than a judicial procedure, as the parties share the costs of the mediation according to their agreement. They can also share the costs of the intervention of an impartial expert on a technical subject. In principle, there are no court costs, or substantially reduced costs, in cases when a mediation settlement has to be registered.
  4. The mediation process encourages the maintenance or renewal of a relationship favoring the continuation of business or family connections, according to the nature of the conflict.

III. Challenges of mediation:

  1. The parties must agree to assume responsability for the handling and the solution of their conflict.
  2. The parties must agree to interact with respect and consideration for the interrest of the other party.
  3. The parties must agree to respect the confidentaility of the mediation according to the terms of their agreement. In commercial matters, this requirement protects the good reputation of each party as commercial partners. In family matters, confidentiality contributes to respectful interactions among members of the different families, which constitutes an important element for children in particular.

  • Etude Schaller Reardon
  • Avocate au barreau
  • Médiatrice FSA
  • MCL U. of Chicago