The benefits of mediation
Mediation as a peacemaking tool:
Although the saying goes that a poor deal is better than a good trial, the intervention of an independent, neutral and impartial third party often helps reach a win-win deal or even a creative solution.
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Mediation is discrete:
Safeguarding the confidentiality of an innovative process, protecting the company’s brand or preserving the reputation of its executive, so many situation worth avoiding the public eye.
The Mediator acts close to economic realities:
Besides perfectly mastering the subject in question, the mediator spontaneously understands the dispute’s national and international impact on your activity. His or her role is to defend the strategic interests of the company, which implies to find practical solutions.
Mediation offers flexibility in every circumstances:
Three people who wish to make a deal are very likely to find a viable solution, especially when mediation enables, if necessary, to set aside legal rules.
Mediation can be vital for a company:
Avoiding delays from a backlogged justice system is an absolute necessity when the survival of a company is at stake… Remaining in control of time is the safest way to swiftly resume growth.
Discover Mediation
Mediation has existed since ancient history. In commercial matters, it serves as a management tool particularly adapted to companies’ needs.
THE DECISION
Resorting to mediation comes from the parties’ choice. Mediation can happen at three key moments:
- before the dispute (by including a clause in the contract)
- during the dispute (by directly seizing a mediation institution)
- during the course of arbitration
To resort to mediation, the parties have to draft a mediation clause in their contract. For example:
“Any dispute arising in connection with this contract shall be resolved by mediation under the aegis of the International Arbitration Chamber of Paris (6 avenue Pierre 1er de Serbie, 75116 Paris, tel: 01.42.36.99.65), in accordance with its Rules of Mediation, which the parties declare to know and accept”.
If the parties choose to resort to mediation before resulting to arbitration:
THE 5
GOLDEN
RULES FOR A
SUCCESSFUL
MEDIATION
ACKNOWLEDGE THE VIRTUES OF AMICABLE SETTLEMENT WITH A “MEDIATOR”
Above all, a successful mediation is conditioned by the parties will to reach an agreement, the parties good faith, the respect of confidentiality and, of course, the quality of the mediator (impartial, competent, diligent, attentive, respectful…). Beyond the mechanism’s efficiency, business executive or general counsel must be firmly convinced that litigation enhances differences.
ANTICIPATE THE DISPUTE… USING THE PROPER CLAUSE
As an effective alternative to the “dispute resolution” clause, the mediation clause provides for amicable settlement of potential dispute through the intermediary of an independent, neutral and impartial third party.
CLARIFY THE MEDIATOR’S FUNCTION
The mediator is a “catalyst of the parties’ relationship” and not an “advice giver”. Neutral and Impartial, he or she uses active listening skills in order to rephrase the parties’ words and reconcile their respective views.
DEFINE THE “HOWS”
In order to recreate a constructive dialogue between the parties, the mediator must go over the means to find a possible solution to the dispute.
REOPEN DIALOGUE
Using mediation to gain confidential information or as a dilatory plea are avoidable pitfalls. Opening up dialogue between the parties helps circumvent those. A successful mediation is not necessarily defined by reaching a deal but can consist in reinstating dialogue between parties.
THE PROCESS
Mediation is a structured process, where two or more parties try to conclude a deal in order to amicably resolve their dispute with the help of an impartial, skillful and diligent third party.
Choosing mediation implies to adopt procedural rules.
By seizing the International Arbitration Chamber of Paris, the parties decide to adopt its Mediation Rules which organizes the practical aspects of the mediation procedure.
The International Arbitration Chamber of Paris undertakes the proceedings. To that end, the Chamber provides to the parties, besides its Mediation Rules and a list of mediators:
- A permanent secretary, talking several languages, in charge of organizing the proceedings
- Hearing rooms located in the center of Paris
By doing so, the International Arbitration Chamber of Paris brings great serenity to the parties.
THE MEDIATOR
The mediator’s purpose is to clarify a situation, facilitate the transmission of information or restore relationships.
He or she helps reinstate dialogue between the parties when their communication has become dysfunctional.
Therefore, the point is not to give a final solution the way a judge or an arbitrator would but to help the parties negotiate an amicable solution.
The mediator is nominated by the Chairman of the Chamber, unless stated otherwise by the parties.
Mediation has the benefit of giving total liberty to conclude a deal or not.
The point is not to agree with the opinion or recommendation of a third person, but to build a custom-made deal. If the parties manage to conclude a deal, the later would have the same binding effect than a contract. When reciprocal concessions are made, the contract is qualified of transaction, which consequently prevents any new legal action with the same cause of action in accordance with article 2052 of the French Civil Code: “the transaction bars the introduction or the pursuit between the parties of a legal action with the same cause of action”.
The Mediation Rules
The Rules of the International Arbitration Chamber of Paris define all the applicable dispositions to mediation proceedings.
They are adapted to all types of disputes in connection with commercial exchanges and correspond to companies’ needs operating at national or international level.
Entered into force in 2021, the last version of the Mediation Rules of the CAIP embeds the last evolutions in civil and commercial mediation.
MEDIATORS
The International Arbitration Chamber of Paris makes available to the parties a list of specialized mediators, duly trained to mediation proceedings.
PROCEDURAL FEES
Any payment is registered in an enforceable contract. To find out more, check the Mediation Rules The mediation’s costs depend on the amount in dispute and the time spent on the case by the mediator. These fees remain quite low. They are calculated in accordance with the following price scale.
INITIATION OF THE PROCEEDINGS
Any party that wish to initiate mediation proceedings must file a request at the International Arbitration Chamber of Paris containing:
- the complete address and contact details of the parties, including their email
- a summary note presenting the dispute
- if applicable, an estimate of the dispute’s value
- the respective position of the parties in the dispute or, failing that, the position of the party referring the matter to the Chamber
- where the parties have contractually agreed to submit their dispute to settlement, a copy of the mediation clause.
Once the file is transmitted, the CAIP acknowledges receipt of the request for mediation which is then notified by all means to the other party.
Response to the request for mediation
- If the mediation proposal is accepted, the Chairman of the Chamber appoints a mediator.
- Otherwise, the file is closed.
The other party has a period of 10 days from the receipt of the notification to respond to the proposal.
The procedural period: mediation may not exceed a period of sixty days from the appointment of the mediator.
However, this period can be renewed.