We want to avoid going to court. Is mediation a good alternative?
Definition. Mediation is a process by which you attempt to reach an agreement with the help of an impartial, neutral, competent, and diligent third party (Article 1530 of the Code of Civil Procedure).
1- It is a voluntary process that cannot be imposed on you. You are free to enter and exit it at any time, without having to justify your decision.
2- A neutral and independent third party (the mediator) must be present. They set the framework for your discussions and assist you in reaching an agreement.
3- The aim is to reach a consensual agreement between you at the end of negotiations in a non-violent setting.
This process is strictly confidential. This confidentiality applies to both discussions and documents submitted and is absolute. No document will be admissible if legal proceedings are initiated.
When and why should mediation be proposed?
Mediation may be initiated by you, advised by your lawyers, or proposed by the judge.
It is useful when it is in your interest to maintain a peaceful relationship (e.g., parents in the context of a divorce, heirs in the context of an inheritance, etc.) and, above all, it allows you to avoid lengthy, complex, and costly litigation.
Mediation is possible when it comes to reaching an agreement concerning your freely disposable rights (e.g., allocation of the marital home).
The stages of the mediation process:
Mediation follows a structured process:
- You explain your situation individually and then collectively to the impartial third party.
- You clearly identify your disagreements and your respective needs.
- With the mediator’s help, you develop a set of possible solutions.
If an agreement is reached, you formalize it (by means of a lawyer’s deed, a private deed, a protocol, etc.) so that it can potentially be approved by a judge.
If mediation fails, you can initiate or resume litigation, but the elements of the mediation cannot be used (principle of confidentiality).
The different types of mediation:
Conventional mediation takes place outside the judicial system; you are free to choose to use it outside of legal proceedings.
Judicial mediation takes place within the framework of a lawsuit: it can be ordered by the judge or requested by the parties to resolve the dispute amicably, in whole or in part.
Gaëtan ESCUDEY, in his capacity as mediator or accompanying lawyer in mediation, is available to guide you through the mediation process.