Conventional Mediation in Lebanon: Overview
Rita S. Ghsoub – Trainee Lawyer
Noueihed Law Offices

“Peace is not the absence of conflict but the presence of creative alternatives for responding to conflict – alternatives to passive or aggressive responses, alternatives to violence.” ~ Dorothy Thompson [1]

Mediation, alongside other types of Alternative Dispute Resolution, has already made its entry into Lebanon. Lebanese citizens strive today to avoid courts and judicial procedures and search for less complex, flexible, affordable, faster, and, of course, effective ways to solve their conflicts.

In 2018, law n°82 enacted judicial mediation that can only occur before a judge, concerning a conflict submitted to the court, at any stage of the procedure. [2] This shift clearly reflected the Lebanese legislator’s will to introduce the ADR’s mechanisms to its legal system.

Even though this was a significant leap into the ADR world, there remains a necessity to take into consideration the parties’ prior agreement to solve their disputes through conventional or contractual mediation.

Thus, regulating and establishing a legal framework is necessary to introduce any new concept and to encourage the conflicting parties, or the parties who want to avoid conflict, to adopt this relatively new ADR technique in Lebanon. This is where law n°286/2022 on conventional mediation came to light. [3]

1. What is conventional mediation?

Although judicial and conventional mediation share some similarities, the main characteristic that states the difference is the conventional factor in the latter.

Pursuant to its very first Article, this type of mediation is an amicable conflict resolution process that gives the parties the possibility to solve their current or future disputes by appointing a mediator to help them reach an agreement, while taking into consideration imperative rules and public order. [4]

Currently, the parties may add a clause to their contract, or in a separate contract, and choose conventional mediation as a way to solve any existing or future disputes. Parties to the mediation either choose a mediator or a mediation center which appoints one of its registered mediators.

The first conventional mediation meeting is mandatory to launch the process. Hereafter, the parties have the right to choose between pursuing the process or ending it. [5]

2. Scope and Limits?

As stated in Article 2, the conventional mediation law n°286/2022 is applicable in commercial, civil, family, economic, educational, and medical matters, and in any dispute where reconciliation is possible, provided that it is not related to public order. The scope is quite similar to the one in law n°82/2018 of the judicial mediation. [6][7] Furthermore, Article 6 states that the provisions of law n°82/2018 must be respected during the conventional mediation, especially when related to:

• the course of mediation,
• confidentiality,
• the parties and the mediator’s behavior
  and as long as they do not contradict law n°286/2022 provisions. [8]
  In any agreement or settlement, parties to the mediation must respect the public
  order.

3. Mediator:
a- Role:

The mediator is the one who organizes the process of conventional mediation. A mediator must be a natural person, who must figure in the ministry of justice’s list of mediators. However, mediation centers, certified by the ministry of justice, also have a role in appointing mediators and organizing the process. [9][10][11]

Parties to the mediation must be aware of the role of mediators, as, unlike arbitrators, they are not supposed to settle disputes or grant any solutions. Their sole role is to lead and facilitate fruitful negotiations that shall help the parties reach a convenient solution. [12]

Mediators endeavor to assure communication between the parties, in addition to fair and proactive participation of all of them. They mustn’t side with any party and must abide by the mediation convention, in accordance with the impartiality principle that we shall discuss subsequently. [13][14]
Furthermore, the mediator shall make sure that the parties’ will is respected and that they’re aware of the whole process and its consequences. Hearings are either collective or, if necessary, with each party alone, and if all parties accept it. [15]

The mediator has the right to allow a third party to advise, explain or clarify any detail that may affect the process, upon the suggestion of the mediator or one of the parties. [16]

The mediator shall choose the meeting’s location. [17]

b- Fees and liability:

Unlike the judicial mediation law, law n°286/2022 details everything related to the mediator’s remuneration. 

A mediator must inform the parties, at first, clearly and comprehensively, prior to the mediation’s process, about all the fees that are due and the means of payment. The mediator has the right to claim a 25% raise of the fees agreed upon at the end of the process in case of:

• obstacles,
• any unexpected additional work, procedure, or expertise,
• mediation period extension

The mediator is the one who organizes the process of conventional mediation. A mediator must be a natural person, who must figure in the ministry of justice’s list of mediators. However, mediation centers, certified by the ministry of justice, also have a role in appointing mediators and organizing the process. [9][10][11]

Parties to the mediation must be aware of the role of mediators, as, unlike arbitrators, they are not supposed to settle disputes or grant any solutions. Their sole role is to lead and facilitate fruitful negotiations that shall help the parties reach a convenient solution. [12]

Mediators endeavor to assure communication between the parties, in addition to fair and proactive participation of all of them. They mustn’t side with any party and must abide by the mediation convention, in accordance with the impartiality principle that we shall discuss subsequently. [13][14]
Furthermore, the mediator shall make sure that the parties’ will is respected and that they’re aware of the whole process and its consequences. Hearings are either collective or, if necessary, with each party alone, and if all parties accept it. [15]

The mediator has the right to allow a third party to advise, explain or clarify any detail that may affect the process, upon the suggestion of the mediator or one of the parties. [16]

The mediator shall choose the meeting’s location. [17]

c- Qualifications:

Mediators must be able to handle the whole process, and have the necessary qualifications to exercise their duties. Hence, mediators are divided into two categories: ^[20]

• Mediators who are not members of mediation centers (aka Ad hoc mediators): in this case, mediators are personally liable to guarantee that they hold a professional training certificate in mediation. Also, they shall prove to the parties their competence in conventional mediation, their participation in a minimum of 8 hours of professional training that includes role-play, and their theoretical and practical knowledge that shall allow them to complete their mission. These continuous trainings shall be done on a yearly basis.
• Mediators who are members of mediation centers: their competence is guaranteed by the centers, including 8 hours of training, along with continuous training.

As mediation is a highly delicate process, professionalism is a must.

d- Impartiality: ^[21]

Impartiality and independence are two main principles that govern the world of mediation. Thus, mediators must disclose any factor that shall affect their independence and impartiality, or anything that shall lead to a conflict of interest. Article 10 listed some of these aspects:

• a previous personal or business relationship between the mediator and any party,
• any interest (financial for instance) related directly to the process.
• if the mediator acted as a consultant or representative to one of the parties, or they were connected professionally prior to or throughout the mediation.

If applicable, the mediator shall stop the process and inform the parties, who shall either terminate their agreement or pursue with the same mediator or another substitute, following a written explicit decision, either allowing the same mediator to pursue the mission or appointing another one.

If mediators neglect to disclose these factors, they must return all expenses in addition to payment of a compensation that must not be inferior to the overall fees. A notification shall be sent by P to the mediation center.

4. Confidentiality: ^[22]

Confidentiality is an obligation that shall be respected by both the mediator and the parties to the mediation. The mediator shall abide by the absolute confidentiality all along the process. Therefore, some requirements must be taken into consideration.

The mediator shall not disclose any relevant information during and after the process, except when the public order requires it.

A mediator shall not be summoned as a witness, whatever the circumstances or situation, as the confidentiality obligation must be respected. In the event where the mediator violates the terms of confidentiality, independence and impartiality stipulated by this law n°286/2022, the injured party may refer to the mediation center to take disciplinary measures in this regard, and may also ask for a refund of expenses in addition to a compensation assessed by a competent court.

5. End of the mediation:

Under Article 9, the mediation process comes to an end in the event of: ^[23]

• parties reaching a settlement,
• one or both parties wish to end the process,
• mediator’s decision not to proceed, either because the process doesn’t meet the mediation’s basic terms, or because it’s futile, or in the case of one of the parties’ bad faiths,
• the expiry of the process’ time – limit,
• the lack of one of the requirements that must be present in any mediator,
• the death of a mediator that the parties, whose process isn’t organized by a professional center, did not replace.

Nevertheless, in case the parties reach an arrangement, the process ends with an agreement signed by the parties, along with all the related contracts.  None of them shall be signed by the mediator; all settlements and agreements may be notarized. ^[24]

It is preferable that the agreement be drafted by a lawyer in order to be enforced by a competent court in the event where one of the parties does not implement it voluntarily.

Conclusion:

Conventional mediation can relieve the caseload of courts, as the number of cases increases tirelessly every day, and provides a cheaper, faster alternative to the backlogged judicial system. It also offers a variety of benefits, as it is often less intimidating than facing a judge in court and less formal.

Also, conventional mediation offers a chance to express freely one’s opinion and to understand the perspective of the opposing side, allowing both parties to deeply understand the root cause of the problem.

With law n°286/2022, Lebanon takes a step forward in the world of ADR which shall inspire a new culture in dispute resolution.

_____________________________________________________________________

* M = the mediator
* P = the parties
* The Process = the mediation process

[1] Dorothy Celene Thompson (1893 – 1961) was an American journalist and radio broadcaster. She was one of the few women news commentators on radio during the 1930s.Thompson is regarded by some as the “First Lady of American Journalism”.

[2] Law n°82/2018 on Judicial Mediation, 10/10/2018, Official Gazette

[3] Law n°286 on Conventional Mediation, entered into force upon its publication in the Official Gazette on the 14th of April, 2022.

[4] Article 1.a of Law n°286/2022: An amicable conflict resolution process that allows its parties to solve their current or future disputes by appointing an impartial, independent, specialized mediator who will help them reach an agreement that shall consider imperative rules and public order. They designate and precise the mediator’s mission in a contract that follows this law’s provisions.

[5] Article 3. parag.3 of Law n°286/2022: the clause bounds the parties to attend the first meeting which the mediator designates as the starting point of The Process. Hereafter, parties are free to choose either to pursue the process or to withdraw from it.

[6] Article 2 of Law n°82/2018: Mediation may be conducted in all types of disputes in which conciliation is allowed in a manner that does not counter public order and mandatory laws in force. All judicial mediation operations are bounded by the provisions of this law.

[7] Article 2 of Law n°286/2022: This law applies to mediation in the commercial, civil, family, economic, educational and medical fields, and in general in any dispute that the parties agree to sort out through mediation and in rights in which conciliation is acceptable and not related to public order.

[8] Pursuant to Article 6 of law n°286/2022, the binding articles of law n°82/2018 are, Articles 11 to 14 and Articles 16 to 18.

[9] Article 1.b of Law n°286/2022: Mediator: is every natural person who is in charge of The Process between the parties.

[10] Article 1.c of Law n°286/2022: Specialized mediator: is every person entrusted with the task of mediation and whose name figures in the list of mediators approved by the Ministry of Justice. [11] Article 1.f of Law n°286/2022: Mediation Center: every legal entity working on the Lebanese territory, who is certified by the Ministry of Justice and whose main duties are managing The Process and appointing its registered mediators.

[12] Article 4.b of Law n°286/2022: M must verify the following:

– that P have agreed, understood and properly signed the mediation agreement clauses.
– that P are aware of the mediation’s principles and particularities.
– that P are aware of the mediator’s role as M is neither an arbitrator, nor a judge nor an expert nor a legal counsel as M is not supposed to settle disputes or grant any solutions. M’s role is to facilitate communication and negotiations and to assist them in finding their own solution.
– that P are aware of their role and must verify their authority and capacity.

[13] Article 5.a of Law n°286/2022: M facilitates communication between the parties to help them through mediation techniques to find the most convenient solution for all parties.

[14] Article 5.b of Law n°286/2022: M assures the P’s involvement and a fair and active participation, and is committed to stay impartial.

[15] Article 5.c of Law n°286/2022: M may listen to each party alone following the acceptance of all parties, in case M judges it necessary. M may set collective hearings.

[16] Article 5.f of Law n°286/2022: In certain cases, M may allow a third party to give consultation or to clarify some facts that affect The Process, following P’s acceptance, upon the mediator’s or one of the P’ request.

[17] Article 5.g of Law n°286/2022: M solely sets the neutral and suitable place for the mediation sessions.  

[18] Article 7 of Law n°286/2022: The mediator’s fees are due on one of the parties or both of them upon agreement […] When fixing the fees, M may be inspired by the table of fees set by mediation centers. These tables aren’t mandatory.

[19] Article 8 of Law n°286/2022: The mediator must clearly inform the parties in advance, and before starting the Process, about all the fees and the forms of payment. […] Following the prior agreement on fees, and at the closure of the Process, M has the right to claim a 25% raise of the fees agreed upon at the end of the process in case of obstacles, when any unexpected additional work, procedure, or expertise is needed, and in case of mediation period extension. In case of refusal of payment of both the basic and the additional fees, the mediator has the right to end the Process or to claim these fees before the competent first instance court.

[20] Article 13 of Law n°286/2022: M must inform P about the professional background and the attendance of professional training on mediation of minimum 8 hours. This is in case M is not designated by a mediation institution. M is personally liable to guarantee the hold of a professional training certificate in mediation and the continuous yearly participation in a minimum of 8 hours of professional training that includes role-play, and a theoretical and practical knowledge that shall allow the completion of the mission. M must prove this to P upon request. However, in case P choose institutional mediation, the institution guarantees the M’s qualifications through many criteria, and one them is the 8 hours training and the continuous trainings.

[21] Article 10 of Law n°286/2022: M must disclose any factor that shall affect their independence and impartiality, or anything that shall lead to a conflict of interest. These factors could be:
– a previous personal or business relationship between the mediator and any party, or any financial or other interests related directly to the process.
– if M acted as a consultant or representative to one of the parties, or they were connected professionally prior to or throughout the Process. If applicable, M shall stop the process and inform P about any factor that is affecting their impartiality or independence. P shall either terminate or pursue with the same mediator or another substitute, following a written explicit decision.

If the disclosure of these factors is overlooked, M must return all expenses in addition to a compensation that mustn’t be less than the overall fees. A notification shall be sent by P to the mediation center.

[22] Article 11 of Law n°286/2022:
a- M shall abide by the absolute confidentiality all along the Process. P are bound to this obligation too.
b- M shall not disclose any relevant information during and after the closure of the Process, unless the public order requires it.
c- M shall not be summoned as a witness, whatever the circumstances or situation, as M is committed to absolute confidentiality, which is itself a basic principle in mediation.
In the event where M violates the terms of confidentiality, independence and impartiality stipulated by this law, the injured party may refer to the mediation center to take disciplinary measures in this regard, and may also ask for a refund of expenses in addition to a compensation assessed by a competent court.

[23] Article 9 of Law n°286/2022: The Process comes to an end in the event of:
– parties reaching a settlement,
– one or both parties wish to end the process via a declaration,
– mediator’s decision not to proceed, either because the process doesn’t meet the mediation’s basic terms, or because it’s futile, or in the case of one of the parties’ bad faiths,
– the expiry of the process’ time – limit,
– the lack of one of the requirements that must be present in any mediator, or the death of a mediator, and the incapability of P, whose process isn’t organized by a professional center, to find a substitute.

[24] Article 12 of Law n°286/2022: In the event where P reach an arrangement, the process ends with an agreement. P shall solely sign on the agreement, along with all the related contracts that M helped reaching.  None of them shall be signed by the mediator. All settlements and agreements may be notarized.