GIVE MEDIATION A CHANCE

CIVIL LITIGATION

GIVE MEDIATION A CHANCE

Although it has existed since 1990, civil mediation remains underutilized, perhaps because it is still relatively unknown to both citizens and lawyers. However, when undertaken in good faith, mediation can save time, money, and reputation.

Despite the pursuit of best practices, business people may find themselves in conflict with a supplier, a client, or a neighbor: neighborhood disturbances, disputes between landlords and tenants, unpaid accounts, conflicts between business people, etc.

Resorting to the courts can take years, involve high costs, provide no guarantee of success, and can tarnish a company’s reputation. By its very nature, mediation is faster, aims for a win-win scenario, and benefits from the principle of confidentiality.

In front of a mediator, parties do not have to convince them of the validity of their position. Unlike a legal action where the focus is generally on the law and the points that oppose the parties, and where each one tries to convince the judge of the fairness of their claims, mediation is a flexible process that emphasizes consensus points.

A conflict is generally emotionally charged; that is why it is important to take a step back and engage in a mediation process with an open mind, consulting an experienced mediator.

To reach a winning solution, a satisfactory amicable agreement, it is important to understand that the concept of civil mediation is based on five elements: the presence of an impartial mediator, low cost to participate, absence of prejudice in case of failure, the voluntary nature of the mechanism, the confidentiality of the process, and its speed.

Prevention is Better

It is essential to highlight that resorting to the courts is a reactive step that occurs when there seems to be no possibility of an amicable agreement. However, savvy entrepreneurs will include in contracts between businesses a clause specifying: In the event of disputes, the parties agree that, before unnecessarily initiating legal proceedings, they will reevaluate their agreement together using the mediation process or any other method of conflict resolution.

The Civil Code specifies that ‘these private methods are mainly negotiation between the parties to the dispute, as well as mediation or arbitration in which the parties seek the assistance of a third party. The parties can also use any other method that suits them and that they consider suitable, whether or not it borrows from these methods.’

Confidentiality

An important advantage of the mediation process is confidentiality. Everything said or written during the mediation process is without prejudice and is not admissible as evidence in legal or other proceedings. However, nothing can compromise the right of the party that provided a disclosed document to produce any evidence or document in court according to the rules of law. It is up to the parties to establish the limits of this confidentiality jointly. If it is decided that mediation should remain confidential, the parties and the mediator should sign a clause to that effect.

WARNING: The information contained in this article, while of a legal nature, does not constitute legal advice. It is recommended to consult with a professional for advice that will address your specific situation.